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TH-HW Soquel LLC A2017-015 (TM 19904)Recorded In Official Records, County of San Bernardino 2/01/2017 BOB DUTTON� 1 PM n;_ a' ASSESSOR — RECORDER — CLERK SAN RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: 9 771 Document Processing Solutions City ClerkDoc#: 2017— 0048136 Titles: 1 Pages: 13 Fees 51.00 City Chino Chino Hills Taxes 0.00 HCity ills, Center Drive 1 Ii1111111111I11111111111111111111 PRIDr $511.06 4is lee Ve saws A2017-015 SUBDIVISION IMPROVEMENT AGREEMENT TRACT MAP NO. 19904 THIS AGREEMENT ("Agreement') is made and entered into this 1/24/2017, by and between the CITY OF CHINO HILLS, a general law city and municipal corporation ("CITY") and TH-HW Soquel LLC ("SUBDIVIDER"). The Parties agree as follows: 1. RECITALS. This Agreement is made with reference to the following facts and objectives: A. SUBDIVIDER presented CITY with a final subdivision map on land identified as Tract Map No. 19904 ("Map"). B. SUBDIVIDER requested that CITY approve the Map before construction and completion of all improvements including, without limitation, streets, highways, public ways, grading, fences, and public utility facilities which are part of or appurtenant to the subdivision ("Subdivision") identified on the Map. CITY C. This Agreement is entered into in accord with the Subdivision Map Act ("Act') and applicable ordinances adopted by CITY including, without limitation, as codified in the Chino Hills Municipal Code ("CHMC"). 2. CONSTRUCTION OF IMPROVEMENTS. A. At its sole cost and expense, SUBDIVIDER agrees to fumish the equipment, labor and materials necessary to complete the Improvements on the Map set forth in attached Exhibit "A," which is incorporated by reference, and such other improvements required by CITY ordinances and/or the City Council when approving the Map ("Improvements"). All of the Improvements, together with appurtenances, contingencies and engineering costs, are more particularly shown on the improvement plans for the Map. It is understood that the list of Improvements shown on Exhibit A, is only a general designation of the Work and not a binding Page 1 of 9 , description thereof. All of the Improvements shall be completed in strict compliance with applicable plans and specifications on file with the CITY's Engineering Department, and any subsequent alterations thereto approved by the CITY's Engineering Department, which alterations in said plans, specifications and standards of Improvements to be performed may be accomplished without first giving prior notice thereof to Surety, and in no event shall such change result in exonerating the Surety's obligations, The Improvements shall be done under the inspection of, and to the satisfaction of the CITY City's Engineer and/or other CITY official as applicable, and shall not be deemed completed until approved and accepted as completed by the CITY. Said acceptance of the Improvement shall also constitute acceptance of any offer of dedication contained herein. B. SUBDIVIDER further agrees that any and all work to be done in conjunction with the Improvements shall conform to the requirements of the Chino Hills Municipal Code and any other applicable ordinances (including ordinances regulating excavations and fills, e.g., grading regulations) and shall be completed within the period of time described above and prior to the acceptance by or on behalf of the CITY of the Improvements. C. The SUBDIVIDER hereby agrees that all of the work to be done in conjunction with the Improvements on any CITY street shall be completed in accordance with the terms and provisions of Title 12 of the Chino Hills Municipal Code. D. It is further agreed that the SUBDIVIDER will at the time from the approval of the Final Map to the completion and acceptance of the Improvements by the CITY, give good and adequate warning of each and every dangerous condition caused by the construction of said Improvements and will protect the traveling public therefrom. E. Further, once work on an Improvement is commenced, it shall be prosecuted in a diligent and workmanlike manner to completion. 3. ESTIMATED COST OF IMPROVEMENTS. The parties agree that the estimated cost of the Improvements is $ 720,321.00 . 4. COMPLETION. SUBDIVIDER must complete all Improvements in a good and workmanlike manner within twelve months after recording the Map or within such further time as may be granted by the CITY's City Engineer. Should SUBDIVIDER fail to complete the Improvements within the time for completion, CITY, at its option, may enter onto SUBDIVIDER's property to complete the Improvements at SUBDIVIDER's cost. 5. ACQUISITION OF PROPERTY FOR IMPROVEMENTS. With respect to any and all necessary acquisitions for the Improvements that are the subject of this Agreement, SUBDIVIDER shall be afforded the right to use its best efforts to negotiate such acquisitions with concerned third parties within 60 days of the filing of the Final Map. If such efforts by SUBDIVIDER are unsuccessful, it shall notify the CITY within 60 days of Page 2 of 9 the filing of the map and, in such notice, shall set forth the nature of the property interest ("Required Property Interest") which the SUBDIVIDER has unsuccessfully sought to acquire or obtain to satisfy any requirement of this Agreement. The CITY shall acquire the Required Property Interest or commence proceedings within 120 days of the filing of the Final Map in accordance with the provisions of California Code of Civil Procedure section 1230.010, et seq. The parties hereby agree that, as a condition to the CITY's acquiring any required rights-of-way, SUBDIVIDER shall be responsible for, and shall advance to the CITY by cash deposit, the fair market value of any land and all Required Property Interests to be acquired by the CITY, and shall reimburse the CITY for all reasonable additional costs incurred by CITY in acquisition negotiations or in the exercise eminent domain with respect to such acquisitions, including, without limitation, reasonable attorney's fees and costs and a Phase 1 environmental assessment. If the SUBDIVIDER fails to comply with this provision of this Agreement, then the SUBDIVIDER waives all rights pursuant to Government Code section 66462.5. 6. WARRANTY OF IMPROVEMENT PLANS. SUBDIVIDER warrants that the plans and specifications for the Improvements comply with the tentative map approval and the master plan for the Subdivision previously approved by CITY's Planning Commission and the City Council, together with all conditions made a part of such approval(s). SUBDIVIDER further warrants that the plans and specifications can be relied upon to accomplish the improvement work covered by this Agreement in a good, workmanlike manner and in accordance with accepted construction practices. Should the plans and specifications at any time before final acceptance of the Improvements prove to be inadequate in any respect, SUBDIVIDER agrees to make such changes deemed necessary by CITY to accomplish Improvement work in a good, workmanlike manner and in accordance with accepted construction practices. SUBDIVIDER further agrees to make or cause to be made such engineering, soils and other reports as may be required by CITY. 7. CITY NOT LIABLE FOR PLANS AND SPECIFICATIONS. CITY is not an insurer or surety for the design or construction of the Subdivision. And no CITY official, officer, or employee is liable or responsible for any claim arising during construction of the Subdivision or Improvements, unless it can be shown that such person specifically directed that the Subdivision or Improvement be accomplished in a manner contrary to the wishes and desires of SUBDIVIDER, and SUBDIVIDER filed a written objection with the CITY Engineer before commencing such work or Improvement. 8. WARRANTY OF WORK. SUBDIVIDER warrants that the Improvements will be constructed in a manner consistent with CITY's specifications and the highest industry standards. Should any Improvement fail to comply with this warranty or any other provision of this Agreement within one (1) year after CITY's final acceptance, SUBDIVIDER must, without delay and without cost to CITY, repair, replace or reconstruct any defective or otherwise unsatisfactory part or parts of the Improvements. Should SUBDIVIDER fail to act promptly or in accordance with this requirement or should the exigencies of the case require repairs or replacements to be made before SUBDIVIDER can be notified, CITY may, at its option, make the necessary repairs or replacements or perform the necessary work and SUBDIVIDER must pay to CITY the Page 3 of 9 actual cost of such repairs plus fifteen percent (15%) for CITY's administrative overhead costs. This Section is not a waiver of any other right CITY may have for correcting faulty workmanship or defective materials. 9. REPAIRS AND REPLACEMENTS. SUBDIVIDER must maintain all of the Improvements constructed under this Agreement in a state of good repair until all of the Improvements are completed and accepted by or on behalf of the CITY. Said maintenance shall include, but not be limited to: A. Road and Drainage: Repair of pavement, curbs, gutters, sidewalks, parkways, drainage facilities, and removal of debris from drainage facilities, sweeping, repairing and maintaining in good and safe conditions all streets and street improvements. B. Sewer System: Repair of sewer system, and removal of debris from sewer system, repairing and maintaining in good and safe condition all sewer system improvements. C. Water System: Repair and/or removal of debris from the water system; repairing and maintaining in good and safe condition of the water system improvements. It shall be SUBDIVIDER's responsibility to initiate this work, but if SUBDIVIDER should fail to do so, SUBDIVIDER shall promptly perform such maintenance when notified to do so by the CITY's City Engineer. Upon failure of SUBDIVIDER to promptly maintain, the CITY may do all necessary work required by this paragraph, the cost thereof being chargeable to SUBDIVIDER and Surety under this Agreement. Any such repair or replacement must be completed to CITY's City Engineer satisfaction and approval. 10. CITY'S RIGHT OF ENTRY. SUBDIVIDER grants CITY a license to enter SUBDIVIDER's property to inspect the Improvements constructed by SUBDIVIDER and to ensure compliance with this Agreement. 11. PAYMENT FOR INSPECTION COSTS. The SUBDIVIDER hereby agrees to pay for the inspection of such Improvements as may be required by the City Engineer and/or other City official. 12. NOTICE OF WORK. The SUBDIVIDER shall give notice to the City Engineer at least 24 hours before beginning any work on the Improvements and shall furnish City Engineer all reasonable facilities for obtaining full information respecting the progress and manner of the Improvements. 13. ALTERATIONS. The SUBDIVIDER shall perform any changes or alterations in the construction and installation of such Improvements required by the CITY, provided that all such changes or alterations do not exceed ten percent of the original total estimate cost of such Improvements. Said costs to be bome by the SUBDIVIDER. 14. CONTRACT SECURITY. Page 4 of 9 A. Concurrently with the execution of this Agreement, SUBDIVIDER must furnish: A surety bond in an amount equal to at least one hundred percent (100%) of the estimated cost of improvements as security for the faithful performance of this Agreement; A separate surety bond in an amount equal to at least one hundred percent (100%) of the contract price for said improvements as security for the payment of all persons performing labor and furnishing materials in connection with this Agreement. B. SUBDIVIDER agrees that the form of the bonds provided by CITY are substantially similar to Government Code §§ 66499.1 and 66499.2. 15. MAINTENANCE BONDS. The bonds referred to in Section 14 will not be released until a surety bond guaranteeing the warranty requirements of Section 8 in the amount of at least ten percent (10%) of the sum shown in Section 3 is filed with CITY. The maintenance bond will be released one (1) yearfrom the date of final acceptance of the Improvements. 16. PERFORMANCE BY CITY OR SURETY. Should SUBDIVIDER fail to prosecute the construction of the Improvements with such diligence as to ensure completion within the time requirements of this Agreement, or in the manner as required by this Agreement, or if SUBDIVIDER is not carrying out the intent of this Agreement, CITY may serve written notice upon SUBDIVIDER and the surety on SUBDIVIDER's faithful performance bond demanding satisfactory compliance with this Agreement. A. Should CITY serve such written notice, CITY may do any one, or combination of, the following: Serve written notice upon the surety on its faithful performance bond demanding satisfactory compliance with this Agreement. In such event the surety must, within five (5) days, assume control and construct the Improvements as SUBDIVIDER's successor; ii. CITY may construct the improvements itself, or by contract, at SUBDIVIDER's expense on a time a materials basis. In such event, CITY may take possession of and utilize in completing improvement construction, materials, appliances, and other property belonging to SUBDIVIDER as may be on the site of the work without liability to CITY. SUBDIVIDER's surety will be liable to CITY for any excess cost of damages incurred by CITY. Page 5 of 9 B. Nothing in this Section waives, or serves as a limitation upon, any additional remedy CITY may have under this Agreement or applicable law. 17.SURETY BOND TO INCLUDE LETTER OF CREDIT. The term "surety bond" also includes such other acceptable security, such as letters of credit or cash deposit agreements issued by responsible financial institutions, which are approved by the City Attorney. The term "surety" includes the issuer of any letter of credit or cash deposit agreement, which is acceptable to CITY as security for the performance of this Agreement. Sureties must be admitted to do business in California. 18. BEST MANAGEMENT PRACTICES. SUBDIVIDER agrees to use best management practices ("BMPs"), as that term is defined under applicable law including, without limitation, the CHMC, in constructing the Improvements anticipated by this Agreement. SUBDIVIDER's failure to comply with the terms of this Section constitutes a material breach of this Agreement. 19. OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models, photographs and reports prepared by SUBDIVIDER under this Agreement are CITY's property. SUBDIVIDER may retain copies of said documents and materials as desired, but must deliver all original materials to CITY upon CITY's written notice. 20.INDEPENDENT CONTRACTOR. CITY and SUBDIVIDER agree that SUBDIVIDER will act as an independent contractor and will have control of all work and the manner in which is it performed. SUBDIVIDER will be free to contract for similar service to be performed for other employers while under contract with CITY. SUBDIVIDER is not an agent or employee of CITY and is not entitled to participate in any pension plan, insurance, bonus or similar benefits CITY provides for its employees. Any provision in this Agreement that may appear to give CITY the right to direct SUBDIVIDER as to the details of doing the work or to exercise a measure of control over the work means that SUBDIVIDER will follow the direction of CITY as to end results of the work only. 21. CASH CHARGES. SUBDIVIDER must pay to CITY in cash such subdivision fees that are established by ordinance or by the CITY Council in conferring approval or extension of time to the Subdivision. 22. INDEMNIFICATION. A. SUBDIVIDER indemnifies and holds CITY harmless from and against any claim, action, damages, costs (including, without limitation, attorney's fees), injuries, or liability, arising out of this Agreement, or its performance, except if due to the sole negligence or wrongful acts of the CITY. Should CITY be named in any suit, or should any claim be brought against it by suit or otherwise, whether the same be groundless or not, arising out of this Agreement, or its performance, SUBDIVIDER must defend CITY (at CITY's request and with counsel satisfactory to CITY) and indemnify CITY for any judgment rendered against it or any sums paid out in settlement or Page 6 of 9 otherwise, except if due to the sole negligence or wrongful acts of the CITY. B. For purposes of this section "CITY" includes CITY's officers, officials, employees, agents, representatives, and certified volunteers. C. SUBDIVIDER agrees and understands that its violation of any Labor Code provision regarding payment of prevailing wages can result in fines or damages being levied against CITY. SUBDIVIDER specifically agrees that the indemnification and defense obligations set forth in this Section include payment of any fines, penalties, or damages that might arise out of this Agreement. D. The requirements as to the types and limits of insurance coverage to be maintained by SUBDIVIDER, and any approval of such insurance by CITY, are not intended to and will not in any manner limit or qualify the liabilities and obligations otherwise assumed by SUBIDIVIDER pursuant to this Agreement, including, without limitation, to the provisions concerning indemnification. 23.INSURANCE. A. Before commencing performance under this Agreement, and at all other times this Agreement is effective, SUBDIVIDER must procure and maintain the following types of insurance with coverage limits complying, at a minimum, with the limits set forth below: Tvoe of Insurance Commercial general liability: Professional Liability Workers compensation Limits (combined sinale) $2,000,000 $2,000,000 statutory requirement B. Commercial general liability insurance must meet or exceed the requirements of ISO -CGL Form No. CG 00 01 11 85 or 88. The amount of insurance set forth above will be a combined single limit per occurrence for bodily injury, personal injury, and property damage for the policy coverage. Liability policies must be endorsed to name CITY, its officials, and employees as "additional insureds" under said insurance coverage and to state that such insurance will be deemed "primary" such that any other insurance that may be carried by CITY will be excess thereto. Such endorsement must be reflected on ISO Form No. CG 20 10 11 85 or 88. Such insurance will be on an "occurrence," not a "claims made," basis and will not be cancelable or subject to reduction except upon thirty (30) days prior written notice to CITY. C. Professional liability coverage will be on an "occurrence basis" if such Page 7 of 9 coverage is available, or on a "claims made" basis if not available. When coverage is provided on a "claims made basis," SUBDIVIDER will continue to renew the insurance for a period of three (3) years after this Agreement expires or is terminated. Such insurance will have the same coverage and limits as the policy that was in effect during the term of this Agreement, and will cover SUBDIVIDER for all claims made by CITY arising out of any errors or omissions of SUBDIVIDER, or its officers, employees or agents during the time this Agreement was in effect. D. SUBDIVIDER must furnish to CITY duly authenticated Certificates of Insurance evidencing maintenance of the insurance required under this Agreement and such other evidence of insurance or copies of policies as may be reasonably required by CITY from time to time. Insurance must be placed with insurers with a current A.M. Best Company Rating equivalent to at least a Rating of "AMI." Certificate(s) must reflect that the insurer will provide thirty (30) day notice of any cancellation of coverage. SUBDIVIDER will require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, and to delete the word "endeavor" with regard to any notice provisions. 24. NOTICES. A. All notices given or required to be given pursuant to this Agreement will be in writing and may be given by personal delivery or by mail. Notice sent by mail will be addressed as follows: The CITY To Subdivider CITY of Chino Hills TH-HW Soquel LLC Attn: City Clerk 450 Newport Center Drive, Suite 300 14000 City Center Drive Newport Beach CA, 92660 Chino Hills, CA 91709 B. When addressed in accordance with this paragraph, notices will be deemed given upon deposit in the United States mail, postage prepaid. In all other instances, notices will be deemed given at the time of actual delivery. C. Changes may be made in the names or addresses of persons to whom notices are to be given by giving notice in the manner prescribed in this paragraph. 25.COMPLIANCE WITH LAW. SUBDIVIDER will comply with all laws applicable to this Agreement including, without limitation, federal, state, and local laws requiring permitting and licenses. All such compliance will be at SUBDIVIDER's own cost. 26. PREVAILING WAGES. If required by applicable state law including, without limitation Labor Code § § 1720 (as amended by AB 975 (2001)), 1771, 1774, 1775, and Page 8 of 9 1776, SUBDIVIDER must pay its workers prevailing wages. It is the SUBDIVIDER's responsibility to interpret and implement any prevailing wage requirements and SUBDIVIDER agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws. In accordance with Labor Code § 1773.2, copies of the prevailing rate of per diem wages are available upon request from CITY's Engineering Division or the website for State of California Prevailing wage determination at http: www.dir.ca.gov/DLSR/PWD. A copy of the prevailing rate of per diem wages must be posted at the job site if SUBDIVIDER is required to pay prevailing wages. 27. CONSTRUCTION. The language of each part of this Agreement will be construed simply and according to its fair meaning, and this Agreement will never be construed either for or against either party. 28. SEVERABLE. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the extent necessary in the opinion of the court to render such portion enforceable and, as so modified, such portion and the balance of this Agreement will continue in full force and effect. 29. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of reference only and will not affect the interpretation of this Agreement. 30. WAIVER. Waiver of any provision of this Agreement will not be deemed to constitute a waiver of any other provision, nor will such waiver constitute a continuing waiver. 31. GOVERNING LAW. This Agreement has been made in and will be construed in accordance with the laws of the State of California and exclusive venue for any action involving this Agreement will be in San Bernardino County. 32.AUTHORITY/MODIFICATION. This Agreement is subject to and conditioned upon approval and ratification by the Chino Hills CITY Council. This Agreement is not binding upon CITY until executed by the Mayor. The Parties represent and warrant that all necessary action has been taken by the Parties to authorize the undersigned to execute this Agreement and to engage in the actions described herein. This Agreement may be modified by written agreement. CITY's CITY Manager may execute any such amendment on behalf of CITY. 33. BINDING UPON SUCCESSORS. The terms of this Agreement constitute a burden and benefit upon the Property. Accordingly, this Agreement will be recorded and the term will run with the Property and become binding upon SUBDIVIDER's heirs, successors and assigns. 34. ENTIRE AGREEMENT. This Agreement constitutes the sole agreement between SUBDIVIDER and CITY respecting the maintenance of the Property's common areas and correctly sets forth the obligations of SUBDIVIDER and CITY. There are no other understandings, terms or other agreements expressed or implied, oral or written. Page 9 of 9 IN WITNESS WHEREOF the parties hereto have executed this contract the day and year first hereinabove written. CITY OF CHINO HILLS, a icipal corporation. May City Council Apa.. /24/2017 r APPROVED AS TO FORM: MARK D. HENSLEY, CITY ATTORNEY B Elizabeth M. Calciano, Assistant City Attorney SUBDIVIDER: TH- MlGl�---w Page 10 of 9 el, LLC CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer compieting this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange on December 20, 2016 before me, Michelle L. Wehr, Notary Public Date Here Insert Name and Title of the Officer personally appeared Michael W. Maples Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(' whose nameol is/ate subscribed to the within instrument and acknowledged to me that he/sheAfaey executed the same in his/herf4!-reiT authorized capacityLjpe , and that by his/laew/#I & signatureP4 on the instrument the person or the entity upon behalf of which the persor Wacted, executed the instrument. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing ,paragraph A ter„ is true and cprrect. MICHELLE L. WEHR WITNESS h and icial s a1. Commission #r 2147965 -� Notary Public - California Orange County My Comm. Expires Apr 9, 2020 Signature 75 *ynature of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Subdivision Improvement Agreement Tract 19904 - City of Chino Hills Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — C Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ©2015 National Notary Association - www.NationalNotary.org - 1 -800 -US NOTARY (1-800-876-6827) Item #5907 EXHIBIT A PARCEL MAP NO. 18698 All improvements marked are included: f Public street improvements including grading, paving, curbs, gutter, sidewalks, traffic control devices, street name signs, street lights, street landscaping, and appurtenances. i Private street or driveway improvements including grading, paving, curbs, gutters, sidewalks, traffic control devices, street name signs, street lighting, landscaping, and appurtenances. Z Public sanitary sewers including mains, laterals, and appurtenances. C' Private sanitary sewers including mains, laterals, and appurtenances. Domestic water supply system, including mains, service laterals, fire hydrants, and appurtenances. ❑ Natural gas supply system including mains, service laterals, and appurtenances. ❑ Electric power distribution system including vaults, conduits, cables, conductors, service laterals, transformers, and appurtenances. ❑ Telephone system including vaults, conduits, cables, conductors, service laterals, and appurtenances. ❑ Cable television system, including vaults, conduits, cables, conductors, service laterals, and appurtenances. Public storm drains including channels, pipes, inlets, culverts, and appurtenances. J� Private storm drains including swales, channels, pipes, inlets, and appurtenances. ❑ Mailboxes. Lot grading including land clearing, earth moving compaction, import or export of soil, and appurtenances. walls including retaining walls, perimeter walls, and appurtenances. Off-street landscaping including trees, bushes, shrubs, turf, irrigation system, and appurtenances. ❑ Other: Describe work to be completed