HomeMy WebLinkAboutE-18 Staff Report - SR - Bond AgreementCONSENT ITEM
E-18
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
VIA: SERGIO GONZALEZ, CITY MANAGER
FROM: ROBERT DELGADILLO, PE, DIRECTOR OF PUBLIC WORKS / CITY ENGINEER
DATE: AUGUST 19, 2024
SUBJECT: REQUEST AUTHORIZATION TO APPROVE AN AGREEMENT FOR
COMPLETION OF PUBLIC IMPROVEMENTS BETWEEN AZUSA JV
BORROWER, LLC AND THE CITY OF AZUSA
BACKGROUND:
On February 28, 2024, the Planning Commission approved Planning cases UP/DR-2023-20 and
Tentative Tract Map (TTM) 84241 located at 137 N Barbara. The project is required to construct certain
public improvements which include but are not limited to on-site mass grading, resurfacing public
streets, removing and reconstructing curb and gutter and sidewalks, installing utilities including water,
sewer and storm drain. A bond agreement for the construction of these improvements is required to
provide adequate financial security in the event the Developer or their Surety company fail to perform or
construct the required improvements in accordance with City standards.
RECOMMENDATION:
Staff recommends that the City Council take the following actions:
1) Approve Agreement for Completion of Public Improvements between Azusa JV Borrower, LLC
and the City of Azusa.
ANALYSIS:
The Agreement for Completion of Public Improvements will serve as the instrument for the Developer
to give the City of Azusa a one-year warranty against any defects or deficiencies in the public
improvements constructed as part of Tract Map 84241.
Approved
City Council
August 19, 2024
REQUEST AUTHORIZATION TO APPROVE AN AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS BETWEEN
AZUSA JV BORROWER, LLC AND THE CITY OF AZUSA
August 19, 2024
Page 2 of 2
FISCAL IMPACT:
There is no fiscal impact associated with the proposed recommendations.
Prepared by: Reviewed by:
Miguel Cabanas, P.E. Robert Delgadillo, P.E.
Principal Civil Engineer Director of Public Works / City Engineer
Fiscal Impact Reviewed by: Reviewed and Approved by:
Talika M. Johnson Sergio Gonzalez
Director of Administrative Services City Manager
Attachments:
1) Agreement for Completion of Public Improvements
1
AGREEMENT FOR COMPLETION OF IMPROVEMENTS
[WITH SECURITY FURNISHED BY DEVELOPER]
1.PARTIES AND DATE.
This Agreement for Completion of Required Improvements is entered into as of this _____
day of , 2024, (“Effective Date”) by and between the City of Azusa, a California municipal
corporation (“City”), and AZUSA JV BORROWER, LLC, a Delaware Limited Liability
Company with its principal office located at 550 N Larchmont Blvd, Suite 201, Los Angeles,
CA 90004 (“Developer or “Owner”). City and Developer are sometimes hereinafter individually
referred to as “Party” and hereinafter collectively referred to as the “Parties”.
2.RECITALS.
2.1 Developer has applied for approval of a project, commonly known as Tract 084241,
located at 137 N Barbara and described in Exhibit “A,” and depicted in Exhibit “B” attached
hereto, and incorporated herein by this reference, hereinafter referred to as the “Project”.
2.2 The Project will require Developer to construct certain public improvements, which
may include, but are not limited to, public streets, sidewalks, curbs and gutters, public utilities
including water, sanitary sewer laterals and storm drainage facilities, private property lot grading
and drainage in or appurtenant to the Project which results in drainage and runoff onto public
improvements; and other public improvements required by the Project (collectively, “Required
Improvements”). The Required Improvements are listed and/or depicted in Exhibit “C,” attached
hereto and incorporated herein by reference.
2.3 Developer wishes to obtain a building permit or other approvals for the Project prior
to construction of the Required Improvements. The City is willing to issue such approvals,
contingent upon Developer’s execution of this Agreement and the provision of adequate security
for the completion of the Required Improvements.
2.4 It is to the benefit of the Developer and the City that the Developer post adequate
security to ensure the construction and installation, within a specific time, of the Required
Improvements, subject to Developer’s continuing obligation to secure construction of the Required
Improvements in the event Developer or their surety fail to perform/construct the Required
Improvements.
3.TERMS.
3.1 Required Improvements. Developer shall furnish, construct and install at its own
expense the Required Improvements, along with any changes or modifications as may be required
by the City Engineer due to errors, omissions, changes in conditions, or changes in circumstances.
The plans and specifications of the required improvements may be modified by the Developer as
the development progresses, provided that any modification is approved in writing by the City
Engineer before it is implemented in field. The total estimated cost of the required improvements
is $465,975.13 [four hundred sixty-five thousand nine hundred seventy-five and 13/100 ], but
Attachment 1
Agreement for Completion of Improvements - Tract 084241
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Developer acknowledges and agrees that Developer’s obligations are not limited to or by this
estimated cost.
3.2 Standard for Work and Materials. All of the work on the Required Improvements
shall be done at the places, of the materials, in the manner, and at the grades, shown upon the
approved plans and specifications and in conformance with the City of Azusa Standard Plans and
Specifications, and to the satisfaction of the City Engineer.
3.3 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.
3.4 Inspection of Work. Developer shall at all times provide safe access for inspection
by City to all parts of the work and to places where the work is in preparation.
3.5 Partially Completed Required Improvements. Where construction of any Required
Improvements has been partially completed prior to this Agreement, Developer shall complete
such Required Improvements or assure their completion in accordance with this Agreement.
3.6 Alterations to Improvements. The Public Improvements in Exhibit “B” are
understood to be 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.
3.7 Quality of Work. The Required Improvements shall be engineered, constructed,
and installed pursuant to City review and approval. The construction plans and specifications for
the Required Improvements shall be prepared in accordance with all applicable federal, state and
local laws, ordinances, regulations, and other requirements. In addition, the Required
Improvements shall be completed in a skillful and workmanlike manner in accordance with all
approved maps, conditions, 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.
3.8 Permits and Fees.
3.8.1 Before commencing with any work, the 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 Required Improvements and
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performance 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.
3.8.2 The Developer shall pay to the City fees for the checking, filing and
processing of improvement plans and specifications, and for inspecting the construction of the
Required Improvements. The amount of these fees will be based on the City of Azusa Schedule
of Fees as applicable to the Required Improvements listed in Exhibit “B.” These fees must be paid
in full at the time permits are issued for the Required Improvements. The fees referred to above
are not necessarily the only City fees, charges or other costs that have been, or will be, imposed
on the Project and its development, and this Agreement shall in no way exonerate or relieve the
Developer from paying such other applicable fees, charges and/or costs.
3.9 Maintenance of Required Improvements. City shall not be responsible or liable for
the maintenance or care of the Required Improvements until City approves and accepts them. In
addition, City shall exercise no control over the Required Improvements until accepted. Developer
shall maintain all of the Required Improvements in a state of good repair until they are completed
by Developer and approved and accepted by City including Partially Completed Required
Improvements as defined by Section 3.5. Maintenance shall include, but shall not be limited to,
repair of pavement, curbs, gutters, sidewalks, street trees, signals, parkways, and sewers; 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 this
work, but if it shall fail to do so, it shall promptly perform such maintenance when notified to do
so by City. If Developer fails to properly maintain the Required Improvements, City may do all
necessary work 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 Required Improvements or their condition.
3.10 Construction Schedule. Work on the Required Improvements shall be completed
within two (2) years of the date of Permit issuance by the City for the construction of the Required
Improvements. At least fifteen (15) calendar days prior to the commencement of such work, the
Developer shall notify the City Engineer in writing of the date fixed by Developer for
commencement of the work. This Agreement shall continue in full force and effect until the
Required Improvements have been completed and accepted by the City.
3.11 Extensions of Schedule.
3.11.1 Time is of the essence for purposes of this Agreement. The dates for
commencement and completion of the Required Improvements may not be extended except as
provided herein. The City may, either before or after the expiration of the time provided by Section
3.10 and in its sole and absolute discretion, provide Developer with additional time within which
to commence and complete the Required Improvements. Notwithstanding, the City’s discretion to
provide additional time, the date to commence or complete the Required Improvements shall be
extended due to delays in the work actually caused by inclement weather, riots, strikes, lockouts,
fires, earthquakes, floods and conditions resulting therefrom, or for other reasons beyond the
control of the Developer (“Delay”), for the period of time of the actual Delay, not to exceed six
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(6) months, and any extension of the date to commence or complete the Required Improvements
thereafter as a result of a Delay may be granted by the City Engineer as provided below. Extensions
of the date to commence or complete the Required Improvements beyond six (6) months due to a
Delay may be granted by the City Engineer only upon a showing of good cause by the Developer,
and the City shall be the sole and final judge as to whether good cause has been shown to entitle
the Developer to an extension beyond six (6) months.
3.11.2 Requests for extension of the completion date shall be in writing and
delivered to the City in the manner hereinafter specified for service of notices. An extension of
time, if any, shall be granted only in writing, and oral extensions shall not be valid or binding on
the City.
3.11.3 In the event the City extends the time of completion of the work to be done
under this Agreement, such extension may be granted without notice by the City to the Developer’s
surety and such a time extension shall in no way release any guarantee or security given by the
Developer pursuant to this Agreement, or relieve or release those providing improvement security
pursuant to this Agreement. The surety or sureties, if any, in executing the security herewith
required shall be deemed to have expressly agreed to any such extension of time. The granting of
an extension of time 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 Required Improvements were to have been completed
hereunder.
3.11.4 The granting of any extension of time may be conditioned by the City to
require new, increased, or amended improvement security amounts to reflect changes in the costs
of constructing the Required Improvements or by other conditions imposed by the City to protect
its interests and ensure the timely completion of the Required Improvements.
3.12 Acceptance of Improvements. Title to and ownership of the Required
Improvements shall vest absolutely in the City upon completion and acceptance in writing of such
improvements by the City. The City shall not accept the required improvements unless they are
constructed in conformity with the approved plans and specifications, approved modifications, if
any, the approved Final Map, the City of Azusa Standard Plans and Specifications, and to the
satisfaction of the City Engineer.
3.13 Superintendence by Developer.
3.13.1 Developer shall require each contractor and subcontractor to have a
competent foreperson on the job at all times when that contractor or subcontractor, or any
employee or agent thereof, is performing work on the Required Improvements.
3.13.2 Developer shall, at all times, enforce strict discipline and good order among
its employees and those of its contractors and subcontractors and shall not employ any unfit person
or anyone not skilled in the assigned task. If Developer or any of its contractors or subcontractors
fail or refuse to carry out the directions of the City intended to address an issue related to the
preservation of public safety or conformance with City Standards in connection with the
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performance of the Required Improvements, City may, in its sole discretion, suspend the work on
the Required Improvements until Developer demonstrates that the unsafe condition has been
remedied to the reasonable satisfaction of the City.
3.13.3 Developer shall maintain an office with a telephone, and Developer or a
person authorized to make decisions or act on Developer’s behalf in Developer’s absence shall be
available to be on the job within twenty four (24) hours of being called at such office by the City,
during the hours of 9:00 a.m. through 5:00 p.m., Monday through Friday, or any other day or time
when work is being performed on the Required Improvements. Developer shall also provide City
with a telephone number, at which Developer or its representative, shall be available twenty-four
(24) hours a day in the event of an emergency.
3.14 Utility Undergrounding and Relocation Costs. Developer shall assume all costs for
utility undergrounding and relocation which is not the responsibility of the gas, electric, cable, and
telephone utility companies under the terms of their franchises with the City.
3.15 Demand to Perform. Upon default of any obligation hereunder, and at any time
after any such default, City may make written demand upon Developer or its surety, or both, to
immediately remedy the default or complete the Required Improvements. If the required work is
not substantially commenced within twenty (20) days of such demand, or if it is not thereafter
diligently prosecuted to a completion acceptable to City within the time frame contained in the
demand, City may then 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. All such work or remedial activity shall be at the sole and absolute expense and
obligation 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 of the Required Improvements at the time of
City’s demand for performance. In the event City elects to complete or arrange for completion of
the remaining Required Improvements, City may require all work by Developer or its surety to
cease in order to permit adequate coordination by City. If the form of improvement security is
other than a bond, then the City, after giving notice of breach of the Agreement, may proceed to
collect against the improvement security in the manner provided by law and by the terms of the
security instrument.
3.16 Violations; Cease and Desists. If City determines that there is a violation of
applicable federal, state or local laws, ordinances, regulations or other requirements, or the terms
and conditions of this Agreement, it may issue a cease and desist order. Developer hereby
acknowledges irreparable harm and injury to City for the purposes of an application by City to the
courts for a restraining order hereunder.
3.17 Grading. Developer agrees that any and all grading done or to be done in
conjunction with the development of the Required Improvements shall conform to all State and
local laws, ordinances, regulations and other requirements, including City’s grading regulations.
In order to prevent damage to the Required Improvements by improper drainage or other hazards,
the grading shall be completed in accordance with the schedule for completion of the Required
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Improvements, and prior to City’s approval and acceptance of the Required Improvements and
release of the improvement security required herein.
3.18 Indemnification. Developer and its surety shall defend, indemnify and hold City,
its officials, officers, employees and agents free and harmless from any and all liability from loss,
damage, or injury to property or persons, including wrongful death, in any manner arising out of
or incident to acts, omissions, and/or operations by Developer or Developer’s contractors or
subcontractors, and/or their respective agents and employees under this Agreement. Further,
Developer and its surety shall defend at their own expense, including attorneys’ fees, City, its
officials, officers, employees, and agents in any legal action based upon such acts, omissions
and/or operations. This indemnification provision shall survive the termination or expiration of
this Agreement. The City does not, and shall not, waive any rights against Developer in which
City may have under this paragraph because of the acceptance by City, or the deposit with City by
Developer, of any of the insurance policies described herein. Developer’s obligations under this
paragraph shall apply to all damages and claims for damages of every kind suffered, or alleged to
have been suffered, regardless of whether or not City has prepared, supplied or approved, plans
and/or specifications for the Project and/or Required Improvements, and regardless of whether or
not such insurance policies shall have been determined to be applicable to any of such damages or
claims for damages.
3.19 Administrative Costs. If Developer fails to construct and install all or any part of
the Required Improvements required by this Agreement within the time set forth herein, or if
Developer fails to comply with any other obligation contained herein, Developer and its surety
shall be jointly and 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.
3.20 Performance and Payment Security.
3.20.1 Upon the execution of this Agreement, Developer shall provide City with
irrevocable letters of credit, cash deposits, or surety bonds in the following amounts:
(a) A faithful performance bond or other security shall be not less than one
hundred percent (100%) of the estimated cost to construct the Required
Improvements, amount of which is stated in Section 3.1, to guarantee the
faithful performance by Developer of its obligations under this Agreement.
The surety or financial institution issuing any such bond or letter of credit
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 the City.
Upon request of the City, the amount of the security shall be subject to
adjustment at the sole and absolute discretion of the City if the estimated
cost of the Required Improvements changes. As part of the obligation
secured by the bond, deposit, or letter of credit and in addition to the face
amount of the security, the surety or financial institution shall also secure
the costs and reasonable expenses and fees, including reasonable attorney’s
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fees and costs, incurred by City in enforcing the obligations of this
Agreement. These expenses, fees and costs shall be taxed as costs and
included in any judgment rendered. The surety or financial institution shall
stipulate and agree that no change, extension of time, alteration or addition
to the terms of this Agreement, the Required Improvements, or the plans
and specifications for the Required Improvements shall in any way affect
its obligation on the bonds or letters of credit. In addition, the surety or
financial institution shall waive notice of any change, extension of time,
alteration or addition to the terms of this Agreement, the Required
Improvements, or the plans and specifications for the Required
Improvements.
3.20.2 Any letter of credit or bond provided by Developer expressly shall obligate
the financial institution or surety, in its capacity as stakeholder, for any extension of time
authorized by City for Developer’s completion of the Required Improvements or related work;
regardless of whether or not given notice of such extension by City. Provision may be made for
giving of notice of time extensions by Developer to the financial institution or surety.
3.20.3 At City’s sole and absolute discretion, security authorized by Government
Code 66499 may be used by Developer as a substitute for the kind of security required under this
Agreement.
3.20.4 Pursuant to this Agreement, City, at its option, may cause all uncompleted
work or labor to be done, or require materials to be delivered, and the financial institution or surety,
up to the extent of Developer’s funds guaranteed on deposit or the amount of the bond, including
any accrued interest thereon, shall make payment therefor free and clear of any claim or lawsuit
by Developer against the financial institution for making such payment, and Developer agrees to
pay all costs, including attorney's fees, if it becomes necessary for the financial institution to defend
against such claim or lawsuit brought by Developer in violation of the terms of this Agreement.
3.21 Release of Security.
3.21.1 Any unused portion of the bond or other security provided for herein shall
be released by the financial institution one year after acceptance of the improvements by the City.
3.22 Insurance Requirements. Developer shall procure and maintain, and shall require
its contractors to procure and maintain, for the duration of this Agreement, a separate policy of
insurance of the types and in the amounts described below (collectively, the “Required Insurance”)
and in a form and from insurers satisfactory to the City.
3.22.1 Coverage. Coverage shall be at least as broad as the latest version of the
following:
(a) General Liability: Insurance Services Office Commercial General
Liability coverage (occurrence form CG 0001).
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(b) Automobile Liability: Insurance Services Office Business Auto
Coverage form number CA 0001, code 1 (any auto).
(c) Workers’ Compensation and Employer’s Liability: As required by
the State of California.
3.22.2 Limits. Policy limits of the Required Insurance shall be:
(a) General Liability: Not less than $1,000,000 per occurrence for
bodily injury, personal injury and property damage, and an aggregate limit of not less than
$1,000,000. If Commercial General Liability Insurance or other form with a general aggregate
limit is used, either the general aggregate limit shall apply separately to this Agreement or the
general aggregate limit shall be twice the required occurrence limit.
(b) Automobile Liability: Not less than $1,000,000 per accident for
bodily injury and property damage.
(c) Workers Compensation: As required by the State of California.
3.22.3 Acceptability of Insurers. All insurers 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 the City.
3.22.4 Certificates of Insurance. Prior to commencement of any work, the
Developer shall provide the City with certificates of insurance evidencing that each policy of
Required Insurance has been obtained and is in full force and effect. The certifications and policies
shall provide that thirty (30) days' written notice of any change or cancellation of the insurance
policies shall be provided to the City. Such insurance and certificates of insurance shall include a
provision for endorsement naming the City, its officers, employees, agents, boards and
commissions as additional insureds with respect to liability arising out of the performance of any
work under this Agreement, and providing that such insurance is primarily insurance with respect
to the interest of the City and that of any other insurance maintained by the City.
3.22.5 Deductibles. Any deductibles or self-insured retentions must be declared to
and approved by the City. At the option of the City, either: (1) the insurer shall reduce or eliminate
such deductibles or self-insured retentions as respects the City, its directors, officers, employees,
agents and volunteers; or (2) Developer and its contractors shall provide a financial guarantee
satisfactory to the City guaranteeing payment of losses and related investigation costs, claims and
administrative and defense expenses.
3.22.6 Separation of Insureds; No Special Limitations. All insurance required by
this Agreement shall contain standard separation of insureds provisions. In addition, such
insurance shall not contain any special limitations on the scope of protection afforded to the City,
its directors, officers, employees, agents and volunteers.
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3.22.7 Endorsements. Developer and its contractors shall provide endorsements
on forms supplied or approved by the City to add the following provisions to the insurance policies:
(a) General Liability: (1) the City, its directors, officers, employees,
agents and volunteers shall be covered as additional insureds with respect to the work or operations
performed by or on behalf of Developer or its contractors, including materials, parts or equipment
furnished in connection with such work; and (2) the insurance coverage shall be primary insurance
as respects the City, its directors, officers, employees, agents and volunteers, or if excess, shall
stand in an unbroken chain of coverage excess of the Developer’s and its contractor’s scheduled
underlying coverage. Any insurance or self-insurance maintained by the City, its directors,
officers, employees, agents and volunteers shall be excess of Developer’s and its contractor’s
insurance and shall not be called upon to contribute with it.
(b) Automobile Liability: (1) the City, its directors, officers, employees,
agents and volunteers shall be covered as additional insureds with respect to the ownership,
operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed
by Developer and its contractors or for which Developer or its contractors are responsible; and (2)
the insurance coverage shall be primary insurance as respects the City, its directors, officers,
employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess
of Developer and its contractor’s scheduled underlying coverage. Any insurance or self-insurance
maintained by the City, its directors, officers, employees, agents and volunteers shall be excess of
Developer’s and its contractor’s insurance and shall not be called upon to contribute with it.
(c) All Coverages: Each policy of Required Insurance shall be
endorsed to state that coverage shall not be canceled except after thirty (30) days prior written
notice by certified mail, return receipt requested, has been given to the City.
3.23 Signs 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 within project limits and 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.
3.24 Warranty and Guarantee.
3.24.1 Developer hereby warrants and guarantees all Required Improvements
against any defective work or labor done, or defective materials furnished in the performance of
this Agreement 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 Required Improvements, in accordance with
the current ordinances, resolutions, regulations, codes, standards, or other requirements of City,
and to the satisfaction 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
Required Improvements which have been repaired, replaced, or reconstructed during the Warranty,
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Developer hereby agrees (and shall cause its surety to so agree) to extend the Warranty for an
additional one (1) year period following City’s acceptance of the repaired, replaced, or
reconstructed Required Improvements. Nothing herein shall relieve Developer from any other
liability it may have under federal, state, or local law to repair, replace, or reconstruct any Required
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.
3.24.2 If the Developer fails to act promptly or in accordance with this Section
3.24, or if the exigencies of the situation require repairs or replacements to be made before the
Developer can be notified, the City may, at its option, make the necessary repairs or replacements
or perform the necessary work, and Developer shall pay to the City the actual cost of such repairs
plus five percent (5%) within thirty (30) days of the date of billing for such work by City. The
parties further understand and agree that the improvement security furnished pursuant to this
Agreement shall guarantee and secure the faithful performance of the provisions of this paragraph
during the one-year warranty period.
3.25 Relationship Between the Parties. The Parties hereby mutually agree that neither
this Agreement, nor any other related entitlement, permit, nor 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.
3.26 Attorney’s Fees. Should either party bring a legal action for the purpose of
protecting or enforcing its rights and obligations under this Agreement, the prevailing party shall
be entitled, in addition to other relief, to the recovery of its attorney’s fees, expenses and costs of
suit.
3.27 Headings. Section headings contained in this Agreement are for convenience only
and shall not have an effect in the construction or interpretation of any provision.
3.28 Construction; References; Captions. 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 Party. 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.
3.29 Notices. All notices to be given hereunder shall be in writing and may be made
either by personal delivery or by registered or certified mail, postage prepaid, return receipt
requested. Mailed notices shall be addressed to the parties at the addresses listed below, but each
party may change the address by written notice in accordance with this paragraph. Notices
delivered personally will be deemed communicated as of actual receipt; mailed notices will be
deemed communicated as of two (2) days after mailing.
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CITY:
City of Azusa
Engineering Division
213 E. Foothill Blvd
Azusa, CA 91702
Attn: Miguel Cabanas, PE
DEVELOPER:
AZUSA JV BORROWER, LLC
550 N Larchmont Blvd, Suite 201,
Los Angeles, CA 90004
3.30 Entire Agreement. This Agreement contains the entire Agreement of the parties
with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or
agreements, either written or oral, express or implied. The invalidity in whole or in part of any
provision of this Agreement shall not void or affect the validity of any other provision of this
Agreement.
3.31 Successors and Assigns. This Agreement shall be binding on the successors and
assigns of the parties, and shall not be assigned by Developer without the prior written consent of
City. Developer acknowledges and agrees that City may cause a copy of this Agreement to be
recorded in the Los Angeles County Recorder’s Office.
3.32 Amendment; Modification. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing and signed by both Parties.
3.33 Governing Law. This Agreement shall be governed by the laws of the State of
California. Venue shall be in Los Angeles County.
3.34 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.
3.35 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.
3.36 Waiver. The 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
hereunder, shall not relieve the Developer of any of its obligations hereunder, whether of the same
or similar type. The foregoing shall be true whether the City’s actions are intentional or
unintentional. Developer agrees to waive, as a defense, counterclaim or setoff, any and all defects,
irregularities or deficiencies in the authorization, execution or performance of the Required
Improvements or this Agreement, as well as the laws, rules, regulations, ordinances or resolutions
Agreement for Completion of Improvements - Tract 084241
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of City with regards to the authorization, execution or performance of the Required Improvements
or this Agreement.
3.37 Definition. For purposes of enforcing this Agreement, the term “City” shall
include, but shall not be limited to, City Council, City Manager, City Attorney, City Engineer, or
any of their authorized representatives. City shall have the sole and absolute discretion to
determine which public body, public official or public employee may act on behalf of City for any
particular purpose.
CITY OF AZUSA
a California municipal corporation
By:
City Manager
Date:
ATTEST:
Jeffrey L. Cornejo Jr.
By:
City Clerk
Date:
APPROVED AS TO FORM:
By:
City Attorney
Date:
AZUSA JV BORROWER, LLC,
a Delaware limited liability company
550 N Larchmont Blvd, Suite 201
Los Angeles, CA 90004
By:
Signature
Printed Name
Date:
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EXHIBIT “A”
LEGAL DESCRIPTION
14
EXHIBIT “B”
LEGAL DESCRIPION PLAT
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EXHIBIT “C”
REQUIRED IMPROVEMENTS COST ESTIMATE