HomeMy WebLinkAboutD- 14 Agreement for Completion of tract 633336-1CONSENT CALENDAR
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: JAMES MAKSHANOFF, DIRECTOR OF PUBLIC WORKS
VIA: F.M. DELACH, CITY MANAGER:
�fE
BY: ROY BRUCKNER, PROJECT MANAGER
DATE: NOVEMBER 6, 2006
SUBJECT: FINAL TRACT MAP NO. 63336-1, EDGEMONT AT ROSEDALE
RECOMMENDED ACTION
It is recommended that the City Council acts and finds as follows:
1. That this project complies with the General Plan and is consistent with the approved tentative map
and any amendments thereto.
2. That this project will not violate any of the provisions of Sections 66473.5, 66474. 1, and 66474.6 of
the Subdivision Map Act.
3. The dedications of easements for Police, Fire Department and Pedestrian Access Purposes, Public
Utility purposes including Water, Sewers and Storm Drains, and Lot A in Fee Simple for Park and
Recreation Purposes, as offered on the map, are hereby accepted.
4. The City Council approves and authorizes the City Manager to execute the attached AGREEMENT
FOR COMPLETION OF PUBLIC IMPROVEMENTS FOR TRACT NO. 63336-1 to construct the required
public improvements and also accept the attached Faithful Performance Bond in the amount of
$421,600, the attached Labor and Materials Bond for $210,800 as guaranteed by Bond Safeguard
Insurance Company, and a cash deposit in the amount of $44,475 to guarantee completion of the
recreational landscaping improvements.
5. That pursuant to Section 66436(a)(3)(A)(i-vii) of the Subdivision Map Act, the City Council hereby
finds that the development of the property, in the manner set forth on the subject division of land,
will not unreasonably interfere with the free and complete exercise of the easements held by
Dhammakaya International Society of California and Azusa Land Partners, LLC and accepts the map
without the signatures of said easement holders.
6. Approve Final Tract Map No. 63336-1, and
7. The City Clerk is hereby authorized to endorse on the face of the maps the certificates, which
embodies the approval of said maps and acceptance of dedications.
BACKGROUND
This Final Map involves the approval of the final subdivision map designated 63336-1, located in the
Village Core of the Rosedale project site. This subdivision will accommodate a portion of the detached
single-family residential project known as Mapleton by Christopher Homes, which will be located around
the Community Recreation Center. The developer is PLC Mapleton, LLC, a Delaware Limited Liablll y
Approval of Final Tract Map No. 63336-1, Rosedale 'il�,' f
City Council Meeting of November 6, 2006
Company, and the Civil Engineer is Walden &Associates.
The designated City Engineer has completed final checking procedures for the final map and has found
that it is in substantial conformance with the State Subdivision Map Act, City of Azusa requirements,
Vesting Tentative Map 54057, Tentative Map 62150, and related conditions of approval. The Applicant
has submitted the checked Final Map, the subdivision agreement, posted necessary bonds, and paid the
applicable fees.
Attached is an Agreement for Completion of Public Improvements for Tract No. 63336-1 to construct the
required public improvements, as well as a Faithful Performance Bond in the amount of $421,600, and a
Labor and Materials Bond in the amount of $210,800 as guaranteed by Bond Safeguard Insurance
Company. A cash bond in the amount of $44,475 has also been posted to guarantee completion of the
recreational landscaping on Lot A (a portion of the Sierra Madre Ave. trail). The improvements are
expected to be completed in the near future, and will be offered to the City for acceptance as they are
completed.
With the technical review having been completed, and the map meeting State and City requirements, the
Council's approval would be a ministerial action.
FISCAL IMPACT
The fiscal impact of the Rosedale project was analyzed in a Fiscal Impact Study. This approval is another
step in the implementation of the Rosedale project.
Approval of Final Tract Map No. 63336-1, Rosedale 2
City Council Meeting of November 6, 2006
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RECOROEWILED I OFFICIAL RECORDS
RECORDER'S OFFICE
LOS ANGELES COUNTY
CALIFORNIA
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RECORDING REQUESTED BY 06 2789998
WHEN RECORDED MAIL TO
NAME Vera Mendoza
City Clerk
City of Azusa
ADDRESS 213 E. Foothill Blvd.
CITY, STATE Azusa, CA
ZIP CODE 91702
SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE
TITLE(S)
AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS: Tract No. 63336-1,
between the City of Azusa and PLC Mapleton LLC
f:
06 2789998
M RECORDING REQUESTED BY:
WHEN RECORDED RETURN TO:
CITY OF AZUSA
213 E. Foothill Blvd.
Azusa, CA 91702
ATTN:
SPACE ABOVE THIS LINE FOR RECORDER'S USE
Exempt from myording-&-pci' Government Code
Section 6103
CITY OF AZUS ALIFORN1A
r
By: _ --
City Clerk
AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS
TRACT NO. 63336-1
between
CITY OF AZUSA
a California municipal corporation
and
PLC MAPLETON LLC
a Delaware limited liability corporation
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AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS
TRACT MAP NO. 63336-1
I. PARTIES AND DATE.
This Agreement for the Completion of Public Improvements ("Agreement") is entered
into as of this 6`" day of November, 2006 by and between the City of Azusa, a California
municipal corporation ("City") PLC Mapleton LLC, a Delaware limited liability company with
it's principal office located at 19 Corporate Plaza Drive, Newport Beach, Ca. 92660
("Developer"). City and Developer are sometimes hereinafter individually referred to as "Party"
and hereinafter collectively referred to as the "Parties."
II. RECITALS.
A. Developer has heretofore submitted to City an application for approval of a tract
map for real property located within City, a legal description of which is attached hereto as
Exhibit "A" ("Property"), and which is identified in City records Tract Map No. 63336-1.
B. Developer's application for a tentative tract map for Tentative Tract No. 54057
was conditionally approved by the City Council on February 3, 2003.
C. Developer has not completed all of the work or made all of the public
'improvements required by, the Subdivision Map Act (Government Code sections 66410 et s%)
, the conditions of approval for Tract No. 63336-1 or other ordinances, resolutions, or policies of
City requiring construction of improvements in conjunction with the subdivision of land.
D. Pursuant to Section 66-4650) and the applicable provisions of the Map Act,
Developer and City enter into this Agreement for the timely construction and completion of the
public improvements and the furnishing of the security therefor, acceptable to the City Engineer
and City Attorney, for Tract No. 63336-1.
E. Developer's execution of this Agreement and the provision of the security are
made in consideration of City's approval of the final map for Tract No. 63336-1.
III. TERMS.
1.0 Effectiveness. This Agreement shall not be effective unless and until all three of
the following conditions are satisfied: (a) Developer provides City with security of the type and
in the amounts required by this Agreement; (b) Developer executes and records this Agreement
in the Recorder's Office of the County of Los Angeles; (c) the City Council of the City ("City
Council") approves the final map for Tract No.63336-1 and (d) Developer records the final map
for Tract No. 63336-1 in the Recorder's Office of the County of Los Angeles. If the above
described conditions are not satisfied, this Agreement shall automatically terminate without need "
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of,further action by either City or Developer, and Developer may not thereafter record the final
map for Tract No.63336-1
2.0 Public hnprovements. Developer shall construct or have constructed at its own
cost, expense, and liability all improvements required by City as part of the approval of Tract
No. 63336-1, including, but not limited to, all grading, roads, paving, curbs and gutters,
pathways, stone drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping,
street lights, and all other required facilities as shown in detail on the plans, profiles, and
specifications which have been prepared by or on behalf of Developer for Tract Map No. 63336-
1 ("Public Improvements"). The Public Improvements are more specifically described in
Exhibit "B," which is attached hereto and incorporated herein by this reference. Construction of
the Public Improvements shall include any transitions and/or other incidental work deemed
necessary for drainage or public safety. The Developer shall be responsible for the replacement,
relocation, or removal of any component of any irrigation water system in conflict with the
construction or installation of the Public Improvements. Such replacement, relocation, or
removal shall be performed to the complete satisfaction of the City Engineer and the owner of
such water system. Developer further promises and agrees to provide all equipment, tools,
materials, labor, tests, design work, and engineering services necessary or required by City to
fully and adequately complete the Public Improvements.
2.1 Prior Partial Construction of Public Improvements. Where construction of
any Public Improvements has been partially completed prior to this Agreement, Developer
agrees to complete such Public Improvements or assure their completion in accordance with this
Agreement.
2.2 Permits; Notices; Utility Statements. Prior to commencing any work,
Developer shall, at its sole cost, expense, and liability, obtain all necessary permits and licenses
and give all necessary and incidental notices required for the lawful construction of the Public
Improvements and perfonnance of Developer's obligations under this Agreement. Developer
shall conduct the work in full compliance with the regulations, rules, and other requirements
contained in any permit or license issued to Developer. Prior to commencing any work,
Developer shall file a written statement with the City Clerk and the City Engineer, signed by
Developer and each utility which will provide utility service to the Property, attesting that
Developer has made all deposits legally required by the utility for the extension and provision of
utility service to the Property.
2.3 Pre -approval of Plans and Specifications. Developer is prohibited from
commencing work on any Public Improvement until all plans and specifications for such Public
Improvement have been submitted to and approved by the City Engineer, or his or her designee.
Approval by the City Engineer shall not relieve Developer from ensuring that all Public
Improvements conform with all other requirements and standards set forth in this Agreement.
2.4 Quality of Work; Compliance With Laws and Codes. The construction
plans and specifications for the Public Improvements shall be prepared in accordance with all
applicable federal, state and local laws, ordinances, regulations, codes, standards, and other
requirements. The Public Improvements shall be completed in accordance with all approved
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maps, plans, specifications, standard drawings, and special amendments thereto on file with City,
as well as all applicable federal, state, and local laws, ordinances, regulations, codes, standards,
and other requirements applicable at the time work is actually commenced.
2.5 Standard of Performance. Developer and its contractors, if any, shall
perform all work required to construct the Public Improvements under this Agreement in a
skillful and workmanlike manner, and consistent with the standards generally recognized as
being employed by professionals in the same discipline in the State of California. Developer
represents and maintains that it or its contractors shall be skilled in the professional calling
necessary to perform the work. Developer warrants that all of its employees and contractors
shall have sufficient skill and experience to perform the work assigned to them, and that they
shall have all licenses, permits, qualifications and approvals of whatever nature that are legally
required to perforin the work, and that such licenses, permits, qualifications and approvals shall
be maintained throughout the term of this Agreement.
2.6 Alterations to Improvements. The Public Improvements in Exhibit `B"
are understood to be only a general designation of the work and improvements to be done, and
not a binding description thereof. All work shall be done and improvements made and
completed as shown on approved plans and specifications, and any subsequent alterations
thereto. If during the course of construction and installation of the Public Improvements it is
determined that the public interest requires alterations in the Public Improvements, Developer
shall undertake such design and construction changes as may be reasonably required by City.
Any and all alterations in the plans and specifications and the Public Improvements to be
completed may be accomplished without giving prior notice thereof to Developer's surety for
this Agreement.
3.0 Maintenance of Public Improvemetlts and Landscaping. City shall not be
responsible or liable for the maintenance or care of the Public Improvements until City approves
and accepts them. City shall exercise no control over the Public Improvements until accepted.
Any use by any person of the Public hnprovements, or any portion thereof, shall be at the sole
and exclusive risk of the Developer at all times prior to City's acceptance of the Public
Improvements. Developer shall maintain all the Public Improvements in a state of good repair
until they are completed by Developer and approved and accepted by City, and until the security
for the performance of this Agreement is released. Maintenance shall include, but shall not be
limited to, repair of pavement, curbs, gutters, sidewalks, signals, parkways, water mains, and
sewers; maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to
City; removal of debris from sewers and storm drains; and sweeping, repairing, and maintaining
in good and safe condition all streets and street improvements. It shall be Developer's
responsibility to initiate all maintenance work, but if it shall fail to do so, it shall promptly
perform such maintenance work when notified to do so by City. If Developer fails to properly
prosecute its maintenance obligation under this section, City may do all work necessary for such
maintenance and the cost thereof shall be the responsibility of Developer and its surety under this
Agreement. City shall not be responsible or liable for any damages or injury of any nature in any
way related to or caused by the Public Improvements or their condition prior to acceptance.
4.0 Construction Schedule. Unless extended pursuant to this Section 4.1 of this
Agreement, Developer shall fully and adequately complete or have completed the Public
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Improvements within twelve (12) months following approval of the final map for Tract
No.63336-1.
4.1 Extensions. City may, in its sole and absolute discretion, provide
Developer with additional time within which to complete the Public Improvements. It is
understood that by providing the security required under Section 13.0 et sed. of this Agreement,
Developer and its surety consent in advance to any extension of time as may be given by City to
Developer, and waives any and all right to notice of such extension(s). Developer's acceptance
of an extension of time granted by City shall constitute a waiver by Developer and its surety of
all defense of laches, estoppel, statutes of limitations, and other limitations of action in any
action or proceeding filed by City following the date on which the Public Improvements were to
have been completed hereunder. In addition, as consideration for granting such extension to
Developer, City reserves the right to review the provisions of this Agreement, including, but not
limited to, the construction standards, the cost estimates established by City, and the sufficiency
of the improvement security provided by Developer, and to require adjustments thereto when
warranted according to City's reasonable discretion.
4.2 ' Accrual of Limitations Period. Any limitations period provided by law
related to breach of this Agreement or the terms thereof shall not accrue until Developer has
provided the City Engineer with written notice of Developer's intent to abandon or otherwise not
complete required or agreed upon Public hmprovements.
5.0 Grading, Developer agrees that any and all grading done or to be done in
conjunction with construction of the Public Improvements or development of Tract No. 63336-1
shall conform to all federal, state, and local laws, ordinances, regulations, and other
requirements, including City's grading regulations. In order to prevent damage to the Public
Improvements by improper drainage or other hazards, the grading shall be completed in
accordance with the time schedule for completion of the Public Improvements established by this
Agreement, and prior to City's approval and acceptance of the Public Improvements and release
of the Security as set forth in Section 13.0 et sec . of this Agreement.
6.0 Utilities:. Developer shall provide utility services, including water, power, gas,
and telephone service to serve each parcel, lot, or unit of land within Tract No. 63336-1 in
accordance with all applicable federal, state, and local laws, rules, and regulations, including, but
not limited to, the regulations, schedules and fees of the utilities or agencies providing such
services. Except for commercial or industrial properties, Developer shall also provide cable
television facilities to serve each parcel, lot, or unit of land in accordance with all applicable
federal, state, and local laws, rules, and regulations, including, but not limited to, the
requirements of the cable company possessing a valid franchise with City to provide such service
within City's jurisdictional limits. All utilities shall be installed underground.
7.0 Fees and Charges. Developer shall, at its sole cost, expense, and liability, pay all
fees, charges, and taxes arising out of construction of the Public Improvements, including, but
not limited to, all plan check, design review, engineering, inspection, and other service fees, and
any impact or connection fees established by City ordinance, resolution, regulation, or policy, or
as established by City relative to Tract No. 63336-1.
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8.0 City Inspection of Public Improvements. Developer shall, at its sole cost,
expense, and liability, and at all times during construction of the Public Improvements, maintain
reasonable and safe facilities and provide safe access for inspection by City of the Public
Improvements and areas where construction of the Public Improvements is occurring or will
occur.
9.0 Default; Notice, Remedies.
9.1 Notice. If Developer neglects, refuses, or fails to fulfill or timely
complete any obligation, term, or condition of this Agreement, or if City determines there is a
violation of any federal, state, or local law, ordinance, regulation, code, standard, or other
requirement, City may at any time thereafter declare Developer to be in default or violation of
this Agreement and make written demand upon Developer or its surety, or both, to immediately
remedy the default or violation ("Notice"). Developer shall substantially commence the work
required to remedy the default or violation within ten (10) days of the Notice. If the default or
violation constitutes an immediate threat to the public health, safety, or welfare, City may
provide the Notice verbally, and Developer shall substantially commence the required work
within twenty-four (24) hours thereof. Immediately upon City's issuance of the Notice,
Developer and its surety shall be liable to City for all costs of construction and installation of the
Public hnprovements and all other administrative costs expenses as provided for in Section 10.0
of this Agreement.
9.2 Failure to Remedy; City Action. If the work required to remedy the
noticed default or violation is not diligently prosecuted to a completion acceptable to City within
the time frame contained in the Notice, City may complete all remaining work, arrange for the
completion of all remaining work, and/or conduct such remedial activity as in its sole and
absolute discretion it believes is required to remedy the default or violation. All such work or
remedial activity shall be at the sole and absolute cost, expense, and liability of Developer and its
surety, without the necessity of giving any further notice to Developer or surety. City's right to
take such actions shall in no way be limited by the fact that Developer or its surety may have
constructed any, or none of the required or agreed upon Public Improvements at the time of
City's demand for perfonnance. In the event City elects to complete or arrange for completion
of the remaining work and improvements, City may require all work by Developer or its surety
to cease in order to allow adequate coordination by City. Notwithstanding the foregoing, if
conditions precedent for reversion to acreage can be met and if the interests of City will not be
prejudiced thereby, City may also process a reversion to acreage and thereafter recover from
Developer or its surety the full cost and expense incurred.
9.3 Other Remedies. No action by City pursuant to Section 9.0 et seq. of this
Agreement shall prohibit City from exercising any other right or pursuing any other legal or
equitable remedy available under this Agreement or any federal, state, or local law. City may
exercise it rights and remedies independently or cumulatively, and City may pursue inconsistent
remedies. City may institute an action for damages, injunctive relief, or specific performance.
10.0 Administrative Costs. If Developer fails to construct and install all or any part of
the Public Improvements within the time required by this Agreement, or if Developer fails to
comply with any other obligation contained herein, Developer and its surety shall be jointly and
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severally liable to City for all administrative expenses, fees, and costs, including reasonable
attorney's fees and costs, incurred in obtaining compliance with this Agreement or in processing
any legal action or for any other remedies permitted by law.
11.0 Accqptance of Improvements-, As -Built or Record Drawings. If the Public
Improvements are properly completed by Developer and approved by the City Engineer, and if
they comply with all applicable federal, state and local laws, ordinances, regulations, codes,
standards, and other requirements, the City Council shall be authorized to accept the Public
Improvements. The City Council may, in its sole and absolute discretion, accept fully completed
portions of the Public Improvements prior to such time as all of the Public hnprovements are
complete, which shall not release or modify Developer's obligation to complete the remainder of
the Public Improvements within the time required by this Agreement. Upon the total or partial
acceptance of the Public Improvements by City, Developer shall file with the Recorder's Office
of the County of Los Angeles a notice of completion for the accepted Public Improvements in
accordance with California Civil Code section 3093, at which time the accepted Public
Improvements shall become the sole and exclusive property of City without payment therefor. If
Tract No. 63336-1 was approved and recorded as a single phase map, City shall not accept any
one or more of the improvements until all of the Public Improvements are, completed by
Developer and approved by City. Issuance by City of occupancy permits for any buildings or
structures located on the Property shall not be construed in any manner to constitute City's
acceptance or approval of any Public Improvements. Notwithstanding' the foregoing, City may
not accept any Public hnprovements unless and until Developer provides one (1) set of "as -built"
or record drawings or plans to the City Engineer for all such Public Improvements. The
drawings shall be certified and shall reflect the condition of the Public Improvements as
constructed, with all changes incorporated therein.
12.0 Warranty and Guarantee. Developer hereby warrants and guarantees all Public
Improvements against any defective work or labor done, or defective materials furnished in the
performance of this Agreement, including the maintenance of all landscaping within the Property
in a vigorous and thriving condition reasonably acceptable to City, for a period of one (1) year
following completion of the work and acceptance by City ("Warranty"). During the Warranty,
Developer shall repair, replace, or reconstruct any defective or otherwise unsatisfactory portion
of the Public Improvements, in accordance with the current ordinances, resolutions, regulations,
codes, standards, or other requirements of City, and to the approval of the City Engineer. All
repairs, replacements, or reconstruction during the Warranty shall be at the sole cost, expense,
and liability of Developer and its surety. As to any Public Improvements which have been
repaired, replaced, or reconstructed during the Warranty, Developer and its surety hereby agree
to extend the Warranty for an additional one (1) year period following City's acceptance of the
repaired, replaced, or reconstructed Public hnprovements. Nothing herein shall relieve
Developer from any other liability it may have under federal, state, or local law to repair, replace,
or reconstruct any Public Improvement following expiration of the Warranty or any extension
thereof. Developer's warranty obligation under this section shall survive the expiration or
termination of this Agreement.
13.0 Security; S"e-Bon cis. Prior to execution of this Agreement, Developer shall
provide City with surety bonds in the amounts and under the terms set forth below ("Security").
The amount of the Security shall be based on the City Engineer's approximation of the actual
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cost to construct the Public Improvements, including the replacement cost for all landscaping
("Estimated Costs"). If City determines, in its sole and absolute discretion, that the Estimated
Costs have changed, Developer shall adjust the Security in the amount requested by City.
Developer's compliance with this provision (Section 13.0 et SeMc .) shall in no way limit or modify
Developer's indemnification obligation provided in Section 16.0 of this Agreement.
13.1 Performance Bond. To guarantee the faithful performance of the Public
Improvements and all the provisions of this Agreement, to protect City if Developer is in default
as set forth in Section 8.0 et sec . of this Agreement, and to secure Developer's one-year
guarantee and warranty of the Public Improvements, including the maintenance of all
landscaping in a vigorous and thriving condition, Developer shall provide City a , faithful
performance bond in the amount of Four Hundred Twenty One, Six Hundred Thousand Dollars
($421,600.00), which sum shall be not less than one hundred percent (100%) of the Estimated
Costs. The City Council may, in its sole and absolute discretion and upon recommendation of
the City Engineer, partially release a portion or portions of the security provided under this
section as the Public Improvements are accepted by City, provided that Developer is not in
default on any provision of this Agreement or condition of approval for Tract No. 63336-1, and
the total remaining security is not less than twenty-five percent (25%) of the Estimated Costs.
All security provided under this section shall be released at the end of the Warranty period, or
any extension thereof as provided in Section 12 of this Agreement, provided that Developer is
not in default on any provision of this Agreement or condition of approval for Tract No.63336-1.
13.2 Labor & Material Bond. To secure payment to the contractors,
subcontractors, laborers, material men, and other persons furnishing labor, materials, or
equipment for performance of the Public Improvements and this Agreement, Developer shall
provide City a labor and materials bond in the amount of Two Hundred Ten, Eight Hundred
Thousand Dollars ($210,800.00) which sum shall not be less than one hundred percent (100%) of
the Estimated Costs. The security provided under this section may be released by written
authorization of the City Engineer after six (6) months from the date City accepts the final Public
Improvements. The amount of such security shall be reduced by the total of all stop notice or
mechanic's lien claims of which City is aware, plus an amount equal to twenty percent (20%) of
such claims for reimbursement of City's anticipated administrative and legal expenses arising out
of such claims.
13.3 Additional Requirements. The surety for any surety bonds provided as
Security shall have a current A.M. Best's rating of no less than A:VIII, shall be licensed to do
business in California, and shall be satisfactory to City. As part of the obligation secured by the
Security and in addition to the face amount of the Security, the Developer or its surety shall
secure the costs and reasonable expenses and fees, including reasonable attorney's fees and
costs, incurred by City in enforcing the obligations of this Agreement. The Developer and its
surety stipulate and agree that no change, extension of time, alteration, or addition to the terms of
this Agreement, the Public Improvements, or the plans and specifications for the Public
Improvements shall in any way affect its obligation on the Security.
13.4 Evidence and Incorporation of Security. Evidence of the Security shall be
provided on the forms set forth in Exhibit "C," unless other forms are deemed acceptable by the
City Engineer and the City Attorney, and when such forms are completed to the satisfaction of
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City, the forms and evidence of the Security shall be attached hereto as Exhibit "C" and
incorporated herein by this reference.
14.0 Monument Security. Prior to City's execution of this Agreement, to guarantee
payment to the engineer or surveyor for the setting of all subdivision boundaries, lot corners, and
street centerline monuments for Tract No. 63336-1 in compliance with the applicable provisions
of City's Municipal and/or Development Code ("Subdivision Monuments"), Developer shall
deposit cash with City in the amount of Ten Thousand Dollars ($10,000.00), which sum shall not
be less than one hundred percent (100%) of the costs of setting the Subdivision Monuments as
determined by the City Engineer. Said cash deposit may be released by written authorization of
the City Engineer after all required Subdivision Monuments are accepted by the City Engineer,
City has received written acknowledgment of payment in full from the engineer or surveyor who
set the Subdivision Monuments, and provided Developer is not in default of any provision of this
Agreement or condition of approval for Tract No. 63336-1.
14.1 Landscape Performance and Labor & Material Security. To guarantee
the faithful performance of public landscape improvements and to secure payment to the
contractors, subcontractors, laborers, material men and other persons furnishing labor, materials,
or equipment for performance of public landscape improvements, Developer shall deposit cash
with City in the amount of Twenty Nine Thousand, Two Hundred Sixty Dollars and no cents
($29,260.00). The City Council may, in it's sole and absolute discretion and upon
recommendation of the City Engineer, partially release a portion or portions of the security
provided under this section as the Public Landscape Improvements are accepted by City,
provided that Developer is not in default on any provision of this Agreement or condition of
approval for Tract 63336-1, and the total remaining security is not less than twenty-five percent
-(25%) of the Estimated Costs. All security provided under this section shall be released at the
end of the Warranty period, or any extension thereof as provided in Section 12 of this
Agreement, provided that Developer is not in default on any provision of this Agreement or
condition of approval for Tract 63336-1.
15.0 Lien. To secure the timely performance of Developer's obligations under this
Agreement, including those obligations for which security has been provided pursuant to
Sections 13 et seq. and 14 of this Agreement, Developer hereby creates in favor of City a lien
against all portions of the Property not dedicated to City or some other governmental agency for
a public purpose. As to Developer's default on those obligations for which security has been
provided pursuant to Sections 13 et seq. and 14 of this Agreement, City shall first attempt to
collect against such security prior to exercising its rights as a contract lienholder under this
section.
16.0 Indemnification. Developer shall defend, indemnify, and hold harmless City, its
elected officials, officers, employees, and agents from any and all actual or alleged claims,
demands, causes of action, liability, loss, damage, or injury, to property or persons, including
wrongful death, whether imposed by a court of law or by administrative action of any federal,
state, or local governmental body or agency, arising out of or incident to any acts, omissions,
negligence, or willful misconduct of Developer, its personnel, employees, agents, or contractors
in connection with or arising out of construction or maintenance of the Public Improvements, or
performance of this Agreement. This indemnification includes, without limitation, the payment
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of all penalties, fines, judgments, awards, decrees, attorneys fees, and related costs or expenses,
and the reimbursement of City, its elected officials, officers, employees, and/or agents for all
legal expenses and costs incurred by each of them. This indemnification excludes only such
portion of any claim, demand, cause of action, liability, loss, damage, penalty, fine, or injury, to
property or persons, including wrongful death, which is caused solely and exclusively by the
negligence or willful misconduct of Agency as determined by a court or administrative body of
competent jurisdiction. Developer's obligation to indemnify shall survive the expiration or
termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received
by City, its elected officials, officers, employees, or agents.
17.0 Insurance.
17.1 Types; Amounts. Developer shall procure and maintain, and shall require
its contractors to procure and maintain, during construction of any Public Improvement pursuant
to this Agreement, insurance of the types and in the amounts described below ("Required
Insurance"). If any of the Required Insurance contains a general aggregate limit, such insurance
shall apply separately to this Agreement or be no less than two times the specified occurrence
limit.
17.1.1 General Liability. Developer and its contractors shall procure and
maintain occurrence version general liability insurance, or equivalent form, with a combined
single limit of not less than $1,000,000 per occurrence for bodily injury, personal injury, and
property damage.
17.1.2 Business Automobile Liability. Developer and its contractors shall
-procure and maintain business automobile liability insurance, or equivalent form, with a
combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include
coverage for the ownership, operation, maintenance, use, loading, or unloading of any vehicle
owned, leased, hired, or borrowed by the insured or for which the insured is responsible.
17.1.3 Workers' Compensation. Developer and its contractors shall
procure and maintain workers' compensation insurance with limits as required by the Labor
Code of the State of California and employers' liability insurance with limits of not less than
$1,000,000 per occurrence, at all times during which insured retains employees.
17.1.4 Professional Liabill . For any consultant or other professional
who will engineer or design the Public Improvements, liability insurance for errors and
omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained
for a period of five (5) years following completion of the Public Improvements. Such insurance
shall be endorsed to include contractual liability.
17.2 Deductibles. Any deductibles or self-insured retentions must be declared
to and approved by City. At the option of City, either: (a) the insurer shall reduce or eliminate
such deductibles or self-insured retentions as respects City, its elected officials, officers,
employees, agents, and volunteers; or (b) Developer and its contractors shall provide a financial
guarantee satisfactory to City guaranteeing payment of losses and related investigation costs,
claims, and administrative and defense expenses.
ORANGE\MXM\21759. 110
06 2789998
17.3 Additional Insured: Separation of Insureds. The Required Insurance shall
name City, its elected officials, officers, employees, agents, and volunteers as additional insureds
with respect to work performed by or on behalf of Developer or its contractors, including
materials, parts, or equipment furnished in connection therewith. The Required Insurance shall
contain standard separation of insureds provisions, and shall contain no special limitations on the
scope of its protection to City, its elected officials, officers, employees, agents, and volunteers.
17.4 Primary Insurance; 'Waiver of Subrogation. The Required Insurance shall
be primary with respect to any insurance or self-insurance programs covering City, its elected
officials, officers, employees, agents, and volunteers. All policies for the Required Insurance
shall provide that the insurance company waives all right of recovery by way of subrogation
against City in connection with any damage or harm covered by such policy.
17.5 Certificates; Verification. Developer and its contractors shall furnish City
with original certificates of insurance and endorsements effecting coverage for the Required
Insurance. 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 received and approved by City before work pursuant to this Agreement
can begin. City reserves the right to require complete, certified copies of all required insurance
policies, at any time.
17.6 Term; Cancellation Notice. Developer and its contractors shall maintain
the Required Insurance for the term of this Agreement and shall replace any certificate, policy, or
endorsement which will expire prior to that date. All policies shall be endorsed to provide that
the Required Insurance shall not be suspended, voided, reduced, canceled, or allowed to expire
-except on 30 days prior written notice to City.
17.7 Insurer Rating. Unless approved in writing by City, all Required
Insurance shall placed with insurers licensed to do business in the State of California and with a
current A.M. Best rating of at least A:VIII.
18.0 Sims and Advertising. Developer understands and agrees to City's ordinances,
regulations, and requirements governing signs and advertising structures. Developer hereby
agrees with and consents to the removal by City of all signs or other advertising structures
erected, placed, or situated in violation of any City ordinance, regulation, or other requirement.
Removal shall be at the expense of Developer and its surety. Developer and its surety shall
indemnify and hold City free and harmless from any claim or demand arising out of or incident
to signs, advertising structures, or their removal.
19.0 Relationship Between the Parties. The Parties hereby mutually agree that neither
this Agreement, any map related to Tract No. 63336-1, nor any other related entitlement, permit,
or approval issued by City for the Property shall operate to create the relationship of partnership,
joint venture, or agency between City and Developer. Developer's contractors and
subcontractors are exclusively and solely under the control and dominion of Developer. Nothing
herein shall be deemed to make Developer or its contractors an agent or contractor of City.
20.0 General Provisions.
ORANGE\MXM\21759. 1 I I
06 2789098
20.1 Authority to Enter Agreement. Each Parry warrants that the individuals
who have signed this Agreement have the legal power, right, and authority make this Agreement
and bind each respective Party.
20.2 Cooperation, Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be necessary,
appropriate, or convenient to attain the purposes of this Agreement.
20.3 Construction; References; Ca tions. It being agreed the Parties or their
agents have participated in the preparation of this Agreement, the language of this Agreement
shall be construed simply, according to its fair meaning, and not strictly for or against any Parry.
Any term referencing time, days, or period for performance shall be deemed calendar days -and
not work days. All references to Developer include all personnel, employees, agents, and
subcontractors of Developer, except as otherwise specified in this Agreement. All references to
City include its elected officials, officers, employees, agents, and volunteers except as otherwise
specified in this Agreement. The captions of the various articles and paragraphs are for
convenience and ease of reference only, and do not define, limit, augment, or describe the scope,
content, or intent of this Agreement.
20.4 Notices. All notices, demands, invoices, and written communications
shall be in writing and delivered to the following addresses or such other addresses as the Parties
may designate by written notice:
CITY:
Cily of Azusa
213 E. Foothill Blvd P.O. Box 1395
Azusa, Ca. 91702`
Attn: Cily Manager
DEVELOPER:
PLC Mapleton LLC, a Delaware limited
liability company
19 Corporate Plaza Drive
Newport Beach, Ca. 92660
Attn: Christopher Gibbs
Depending upon the method of transmittal, notice shall be deemed received as follows: by
facsimile, as of the date and time sent; by messenger, as of the date delivered; and by U.S. Mail
first class postage prepaid, as of 72 hours after deposit in the U.S. Mail.
,20.5 Amendment, Modification. No supplement, modification, or amendment
of this Agreement shall be binding unless executed in writing and signed by both Parties.
20.6 Waiver. City's failure to insist upon strict compliance with any provision
of this Agreement or to exercise any right or privilege provided herein, or City's waiver of any
breach of this Agreement, shall not relieve Developer of any of its obligations under this
Agreement, whether of the same or similar type. The foregoing shall be true whether City's
actions are intentional or unintentional. Developer agrees to waive, as a defense, counterclaim or
set off, any and all defects, irregularities or deficiencies in the authorization, execution or
performance of the Public Improvements or this Agreement, as well as the laws, rules,
regulations, ordinances or resolutions of City with regards to the authorization, execution or
performance of the Public Improvements or this Agreement.
ORANGE\M X\21759. 112
UE 2789998 ll
20.7 Assignment or Transfer of Agreement. Developer shall not assign,
hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest
herein without prior written consent of City. Any attempt to do so shall be null and void, and
any assignee, hypothecatee, or transferee shall acquire no right or interest by reason of such
attempted assignment, hypothecation, or transfer. Unless specifically stated to the contrary in
City's written consent, any assignment, hypothecation, or transfer shall not release or discharge
Developer from any duty or responsibility under this Agreement.
20.8 Binding Effect. Each and all of the covenants and conditions shall be
binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal
representatives, or assigns. This section shall not be construed as an authorization for any Party
to assign any right or obligation.
20.9 No Third Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
20.10 Invalidity; Severability. If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions shall continue in full force and effect.
20.11 Consent to Jurisdiction and Venue. This Agreement shall be construed in
accordance with and governed by the laws of the State of California. Any legal action or
proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the
Parties' activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the
appropriate California State Court in the County of Los Angeles, California. Each Party waives
the benefit of any provision of state or federal law providing for a change of venue to any other
court or jurisdiction including, without limitation, a change of venue based on the fact that a
governmental entity is a party to the action or proceeding, or that a federal right or question is
involved or alleged to be involved in the action or proceeding. Without limiting the generality of
the foregoing waiver, Developer expressly waives any right to have venue transferred pursuant to
California Code of Civil Procedure Section 394.
20.12 Attorneys' Fees and Costs. If any arbitration, lawsuit, or other legal action
or proceeding is brought by one Party against the other Party in connection with this Agreement
or the Property, the prevailing party, whether by final judgment or arbitration award, shall be
entitled to and recover from the other party all costs and expenses incurred by the prevailing
party, including actual attorneys' fees ("Costs"). Any judgment, order, or award entered in such
legal action or proceeding shall contain a specific provision providing for the recovery of Costs,
which shall include, without limitation, attorneys' and experts' fees, costs and expenses incurred
in the following: (a) post judgment motions and appeals, (b) contempt proceedings, (c)
garnishment, levy, and debtor and- third party examination, (d) discovery, and (e) bankruptcy
litigation. This section shall survive the termination or expiration of this Agreement.
20.13 Countemaxts. This Agreement may be executed in counterpart originals,
which taken together, shall constitute one and the same instrument.
ORANGEWUCv1\21759. 113
CITY OF AZUSA
By: h fL��
Name: �Alu o-�- S ��LAC/�
City Manager
City of Azusa
ATTEST:
By:
(signature)
(print name)
City Clerk
City of Azusa
06 2789�U8 1 '01
PLC MAPLETON LLC, a Delaware
limited liability Company
By: Rockpoint/PLC Azusa, LLC, a
Delaware limited liability company, it's sole
member
By: PLC Azusa Land Investment, LLC, a
Delaware limited liability company, it's
By:
Name: Dan O'Bannon
Chief Financial Officer
By: -
Name: Robert J. Trapp
Title: Vice President
NOTE: DEVELOPER'S SIGNATURES SHALL BE DULY NOTARIZED, AND
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE
REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR
OTHER RULES OR REGULATIONS APPLICABLE TO DEVELOPER'S
BUSINESS ENTITY.
ORAN G E\M XM \2175 9. 114
CAPACITY CLAIMED BY SIGNER:
— Individual(s)
Corporate
Officer(s)
Partner(s)
— Attorney -in -Fact
Trustee(s)
Subscribing Witness
— Guardian/Conservator
Other
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
STATE OF CALIFORNIA
COUNTY OF a_APG
06 2789998
ACKNOWLEDGMENT
iRlICY C. GT1111M
COMMbMon # 1415241
wi
-rr Notary Public - Calltomia
Orange County
MVC0MM. ftLW Mays, 2OD7
On ()C+0bC' I0�m 200(p before me,
=6.N L • 60jj4 Mit 4 the undersigned notary public, personally appeared
ll
personally known to me
OR — proved to me on the basis of satisfactory evidence to be the person(s) whose name(s}4/are
subscribed to the within instrument and acknowledged to me that4re/,4m/they executed the same
in his/her/their authorized capacity(ies), and that by-los/leer/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
■1"Al
ORANGE\M XM\21759. 115
06 2789998 � :r
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
TRACT NO. 63336-1
ORANGE\MXM\21759. 1 1 %
0►6 2789998
EXHIBIT "B"
LIST OF PUBLIC IMPROVEMENTS
TRACT NO. 63336-1
ORANGE\MXM\21759, 1 IS
.
06 2789U98
EXHIBIT "C"
SURETY BONDS AND OTHER SECURITY
TRACT NO. 63336-1
As evidence of understanding the provisions contained in this Agreement, and of the Developer's
intent to comply with same, the Developer has submitted the below described security in the
amounts required by this Agreement, and has affixed the appropriate signatures thereto:
PERFORMANCE BOND PRINCIPAL AMOUNT: $421,600.00
Surety: Bond Safeguard Insurance Company
Attorney-in-fact: Janina Monroe
Address: 800 MacArthur Blvd. Suite #550
Irvine, Ca. 92612
MATERIAL AND LABOR BOND PRINCIPAL AMOUNT: $210,800.00
Surety: Bond Safeguard Insurance Company
Attorney-in-fact: Janina Monroe
Address: 800 MacArthur Blvd. Suite #550
Irvine, Ca. 92612
CASH MONUMENT SECURITY: $10,0000.00
Amount deposited per Cash Receipt No. Date:
ORANGE\MXM\21759. 119