HomeMy WebLinkAbout1991-342
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RESOLUTION NO. 91-342
RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING THE
FINAL MAP FOR SUBDIVISION TRACTS NOS. 14503 AND 14503-1, LOCATED
AT THE SOUTHWEST CORNER OF CAJON BOULEVARD AND CABLE CREEK FLOOD
CONTROL CHANNEL, ACCEPTING THE PUBLIC DEDICATIONS AS SET FORTH ON
SAID MAP; AND AUTHORIZING EXECUTION OF THE STANDARD FORM OF
AGREEMENT FOR THE IMPROVEMENTS IN SAID SUBDIVISIONS, WITH TIME FOR
PERFORMANCE SPECIFIED.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1:
The Mayor and Common Council find that
proposed Subdivision Tracts Nos. 14503 and 14503-1, located at
the southwest corner of Cajon Boulevard and Cable Creek Flood
Control Channel, together with the provisions for their design
and improvements is consistent with the General Plan of the City
of San Bernardino.
SECTION 2.
The Mayor of the City of San Bernardino is
authorized on behalf of said City to execute the standard form of
agreement adopted by Resolution No. 84-8 with Cimarron Ranch
Partnership,
for
the
California
Limited
Associates,
a
improvements in said subdivision tracts as are required by Title
18 of the San Bernardino Municipal Code and the California
Subdivision Map Act. The time for performance is specified at 24
months.
Said improvements are specifically described and shown
on Drawings approved and on file in the office of the City
Engineer of the City of San Bernardino.
SECTION 3:
The Final Map of said subdivision tracts is
hereby approved and the City of San Bernardino hereby accepts as
public property all dedications within the subdivision as shown
on said Final Map for streets, alleys, (including access rights),
drainage and other public easements. As a condition precedent to
7-05-91
YHK:rs
RESO: APPROVJNG FINAL MAP FOR TRACTS NOS. 14503 & 14503-1.
1 approval of the Final Map, the Subdivider shall first execute the
2 agreement referenced in Section 2 hereof for the improvements
3 within said subdivision. The City Clerk shall certify the
4 approval and acceptance of the Mayor and Common Council as set
5 forth in this resolution.
6 SECTION 4. This resolution is rescinded if the parties
7 to the agreement fail to execute it within sixty (60) days of the
8 passage of this resolution.
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RESO:
APPROVING FINAL MAP FOR TRACTS NOS. 14503 & 14503-1.
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I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Conunon Council of the City of San
Bernardino at a
reqular
5th day of
Auqust
Council Members:
6 ESTRADA
7 REILLY
8 HERNANDEZ
9 MAUDSLEY
10 MINOR
11 POPE-LUDLAM
meeting thereof, held on the
, 1991, by the following vote, to-wit:
AYES
ABSTAIN ABSENT
NAYS
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~~ ~u.~
City C erk
The foregoing resolution is hereby approved this 7th
Auaust
Approved as to form
20 and legal content:
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James F. Penman
City Attorney
.k
, 1991.
./'1~/// /..
olcomb{ Mayor
San Bernardino
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AGREEMENT
(Subdivision Improvements)
THIS AGREEMENT is made and entered into as of this
day of
, 19~, by and between the CITY OF SAN
5 BERNARDINO, a Municipal Corporation, hereinafter referred to as
6 "City", and CIMARRON RANCH ASSOCIATES, a California limite~ IlMfI1A.'rle!~er
7 referred to as "Subdivider".
8 RECITALS
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A.
WHEREAS, Subdivider has presented to City for
10 approval a final subdivision map (hereinafter called "map")
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Tract 14503
entitled
; and,
B.
WHEREAS, the map has been ~led with the City for
15 presentation to the City Council (hereinafter called "Council")
16 of the City for its approval, which map is hereby referred to and
17 incorporated herein; and,
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C.
WHEREAS, Subdivider has requested approval of the map
19 prior to the construction and completion of improvements,
20 including all streets, highways or public ways and public utility
21 facilities which are a part of, or appurtenant to, the
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subdivision (hereinafter called "subdivision") designated in the
map, all in accordance with, and as required by, the Plans and
Specifications for all or any of said improvements in,
appurtenant to, or outside the limits of subdivision, which Plans
and Specifications are now on file in the Office of the City
Engineer of the City; and,
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D.
WHEREAS, Council has approved said map and accepted
the dedications therein offered, or some thereof, on condition
that Subdivider first enter into and execute this Agreement with
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the City; and,
E. WHEREAS, This Agreement is executed pursuant to the
provisions of the Subdivision Map Act of the State of California
and Title 18 San Bernardino Municipal Code.
NOW THEREFORE, for and in consideration of the approval of
the map and of the acceptance of the dedications, or some
thereof, therein offered and in order to insure satisfactory
performance by Subdivider of Subdivider's obligations under said
Subdivision Map Act and said Ordinance, the parties agree as
follows:
1.
Performance of Work. Subdivider will do and perform,
15 or cause to be done and performed, at Subdivider's own expense,
16 in a good and workmanlike manner, and furnish all required
17 materials, all to the satisfaction of the City Engineer of City,
18 the work and improvements within (and/or without) the subdivision
19 to complete the improvements in accordance with the Plans and
20 Specifications on file as hereinbefore specified, or with any
21 changes required or ordered by said Engineer which, in his
22 opinion, are necessary or required to complete the work.
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2. Work: Places and Grades to be Fixed by Engineer. All
24 of said work is to be done at the places, of the materials, in
25 the manner, and at the grades, all as shown upon the Plans and
26 Specifications therefor, heretofore approved by City Engineer and
27 which are now on file in his office, and to the satisfaction of
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September 20, 1990
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said City Engineer.
3.
Time for Commencement and Performance.
City
Work:
hereby fixes the time for the completion of said work to be
wi thin twenty-four (24) months
from the date hereof.
4. Time of Essence - Extension. Time is of the essence of
this Agreement; provided that, in the event good cause is shown
therefor, the City Engineer may extend the time for completion of
the improvements hereunder.
Any such extension may be granted
without notice to the Subdivider's surety, and extensions so
granted shall not relieve the surety's liability on the bond to
secure the faithful performance of this Agreement.
The Ci ty
12 Engineer shall be the sole and final judge as to whether or not
13 good cause has been shown to entitle Subdivider to an extension.
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15 have replaced, or repair, or have repaired, as the case may be,
5. Repairs and Replacements. Subdivider shall replace, or
16 all pipes and monuments shown on the map which have been
17 destroyed or damaged, and Subdivider shall replace, or have
18 replaced, repair, or have repaired, as the case may be, or pay to
19 the owner the entire cost of replacement or repairs, of any and
20 all property damaged or destroyed by reason of any work done
21 hereunder, whether such property be owned by the United States,
22 or any agency thereof, or the State of California, or any agency
23 or political subdivision thereof, or by the City, or by any
24 public or private corporation, or by any person whomsoever, or by
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any combination of such owners.
Any such repair or replacement
26 shall be to the satisfaction, and subject to the approval, of the
27 City Engineer.
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September 20, 1990
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6.
utility Deposits - Statement.
Subdivider shall file
with the City Clerk, prior to the commencement of any work to be
performed within the area delineated on the map, a written
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statement signed by Subdivider, and each public utility
corporation involved, to the effect that Subdivider has made all
deposits legally required by such public utility corporation for
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the connection of any and all public utilities to be supplied by
such public utility corporation within the Subdivision.
7.
Permits:
Compliance with Law.
Subdivider shall, at
10 Subdivider's expense, obtain all necessary permits and licenses
11 for the construction of such improvements, give all necessary
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notices and pay all fees and taxes required by law.
Subdivider
13 shall comply with all provisions of the Subdivision Map Act and
14 Title 18 San Bernardino Municipal Code.
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8.
Superintendence by Subdivider.
Subdivider shall give
16 personal superintendence to the work on said improvement, or have
17 a competent foreman or superintendent, satisfactory to the City
18 Engineer on the work at all times during progress, with authority
19 to act for Subdivider.
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Inspection by City.
Subdivider shall at all times
21 maintain proper facilities and provide safe access for inspection
22 by City to all parts of the work and to the shops wherein the
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23 work is in preparation.
10.
25 hereof, Subdivider shall furnish to City improvement security as
Contract Security.
Concurrently with the execution
26 follows:
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(a) An amount equal to at least one hundred percent (100%)
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September 20, 1990
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of the total estimated cost of the improvement and
acts to be performed as security for the faithful
performance of this Agreement;
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(b) An amount equal to at least fifty percent (50%) of the
total estimated cost of the improvements and acts to
be performed as security for the payment of all
persons performing labor and furnishing materials in
connection with this Agreement; and,
(c) An amount equal to at least twenty-five percent (25%)
of the total estimated cost of the improvements and
acts to be performed as security for the guarantee and
warranty of the work for a period of one (1) year
following the completion and acceptance thereof
against any defective work or labor done, or defective
materials furnished.
As a part of the obligation guaranteed by the
security and in addition to the face amount of the
security, there shall be included costs and reasonable
expenses and fees, including reasonable attorney's
fees, incurred by City in successfully enforcing the
obligation secured.
The type of security furnished
shall be in the form of bonds, deposits or letters of
credit as provided in Title 18 San Bernardino
24 Municipal Code, and the type shall be at the option of
25 and subject to the approval of the City Engineer and
26 the City Attorney.
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September 20, 1990
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11. Subdivider's Insurance. Subdivider shall not commence
work under this Agreement until Subdivider shall have obtained
all insurance required under this paragraph, and such insurance
shall have been approved by City Attorney as to form, amount and
carrier, nor shall Subdivider allow any contractor or
subcontractor to commence work on his contract or subcontract
until atl similar insurance required of the contractor or
subcontractor shall have been so obtained and approved.
All
requirements herein provided shall appear either in the body of
the insurance policies or as endorsements and shall specifically
bind the insurance carrier.
(a)
Workers Compensation Insurance/Emp1oyer's Liability
Insurance. Subdivider sha11 maintain, during the life
of this Agreement, Worker's Compensation Insurance and
Employer's Liability Insurance for a11 Subdivider's
employees employed at the site of improvement, and, in
case any work is sublet, Subdivider shall require any
contractor or subcontractor similarly to provide
Worker's Compensation Insurance and Employer's
Liability Insurance for all contractor's or
subcontractor's employees, unless such employees are
covered by the protection afforded by Subdivider. In
case any class of employees engaged in work under this
Agreement at the site of the project is not protected
under any Worker's Compensation Law, Subdivider shall
provide, and shall cause each contractor and
subcontractor to provide, adequate insurance for the
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September 20, 1990
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protection of employees not otherwise protected.
Subdivider shall indemnify City for any damage
resulting to it from failure of either Subdivider or
any contractor or subcontractor to take out or
maintain such insurance.
(b) Public Liability and Property Damage Insurance.
Subdivider shall take out and maintain, during the
life of this Agreement, such public liability and
property damage insurance as shall insure City, its
elective and appointive boards, commissions, officers,
agents and employees, Subdivider and any contractor or
subcontractor performing work covered by this
Agreement from claims for damages for personal injury,
(as defined hereunder), including death, as well as
from claims for property damage or product liability
which may arise from Subdivider's or any contractor's
or subcontractor's operations hereunder, whether such
operations be by Subdivider or any contractor or
subcontractor, or by anyone, including, without
limitation, agents, employees or independent
contractors, directly or indirectly employed by either
Subdivider or any contractor or subcontractor, and the
amounts of such insurance shall be as follows:
(1) Public Liability Insurance.
In an amount not
less than One Million Dollars ($1,000,000.00) for
injuries, including, but not limited to, death,
to anyone person, and, subject to the same limit
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September 20, 1990
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for each person, in an amount not less than One
Million Dollars ($1,000,000.00) on account of any
one occurrence; Product Liability Insurance
coverage should be part of the Public Liability
Insurance;
(2) Property Damage Insurance. In an amount not less
than One Million Dollars ($1,000,000.00)
for damage to the property of each person on
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account of anyone occurrence.
In the event that any of the aforesaid insurance
policies provided for in this Paragraph 11 insures any
entity, person, board or commission other than those
mentioned in this paragraph, such policy shall contain
a standard form of crOSS-liability endorsement,
insuring on such policy City, its elective and
appointive boards, commissions, officers, agents and
employees, Subdivider and any contractor or
subcontractor performing work covered by this
Agreement.
(3) Tai1 Coverage.
Insurance coverage, albeit for
public liability or property damage, shall be
written, if possible, on an "occurrence" form
rather than a "claims made" policy.
If the
insurance policy is written on a "claims made"
policy, then additional coverage, entitled "tail
coverage" must be purchased to cover a period of
one (1) year from completion of the project. All
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September 20, 1990
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subcontractors must and shall comply with the
same insurance provisions as the contractor(s)
and subdivider(s).
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(4) Personal Injury - Defined.
As used herein, the
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term "personal injury" shall be defined as a hurt
or damage to one's person including, without
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limitation, damage to health, cuts, bruises,
broken limbs and/or bones, or the like,
disabilities or impairments, including
aggravation of existing injuries, on invasion of
personal rights, including libel or slander
criminal conversation, malicious prosecution,
false imprisonment and mental suffering.
12.
Evidence of Insurance.
Subdivider and contractor
15 shall furnish City, concurrently with the execution hereof, with
16 satisfactory evidence of the insurance required, and evidence
17 that City is named and endorsed on the pOlicy as an addi tiona 1
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insured.
Subdivider and contractor shall also provide City with
19 evidence that each carrier will be required to give City at least
20 ten (10) days prior written notice of the cancellation or
21 reduction in coverage of any policy during the effective period
22 of this Agreement.
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13.
Hold Harmless/Indemnification.
Subdivider(s)/
24 Developer(s) hereby agree to and shall protect, defend, indemnify
25 and hold the City and its elective and appointive boards,
26 commiSSions, officers, agents, employees and servants free and
27 harmless from any and all liability losses, damages, claims,
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September 20, 1990
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liens, demands and cause of action of every kind and character
including, but not limited to, the amounts of judgments,
penalties, interests, court costs, attorney's/legal fees, and all
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other expenses incurred by the City arising in favor on any
party, including claims, liens, debts, demands for lost wages or
compensation, personal injuries, including employees of the City,
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death or damages to property (including property of the City) and
without limitation by enumeration, all other claims or demands of
9 every character occurring or in any way incident to, in
10 connection with or arising directly or indirectly, (including
11 from the negligent performance by its officers, employees,
12 agents) from the terms of this Agreement, whether such
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operations/incidents are caused by contractor, Subdivider or any
of contractor/Subdivider's subcontractors, contractors or by any
one or more persons directly or indirectly employed by or acting
as agent for contractor, Subdivider, or anyone of contractor or
17 Subdivider's contractors or subcontractors. Subdivider/Developer
18 shall investigate, handle, respond to, provide defense for and
19 defend any such claims, demand, or suit at the sole expense of
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20 the Subdivider/Developer even if the claim or claims alleged are
22 shall, defend City, its appointive boards, commissions, officers,
groundless, false or fraudulent.
Subdivider agrees to, and
23 agents and employees from any suits or actions at law or in
24 equity for damages caused, or alleged to have been caused, by
25 reason of any of the aforesaid operations, provided as follows:
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(a) That City does not, and shall not, waive any rights
against Subdivider which it may have by reason of the
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September 20, 1990
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aforesaid hold harmless agreement, because of the
acceptance by City, or the deposit with City by
Subdivider, or any of the insurance policies described
in Paragraph 11 hereof.
(b) That the aforesaid hold harmless agreement by
Subdivider shall apply to all damages and claims for
damages of every kind suffered, or alleged to have
been suffered, by reason of any of the aforesaid
operations referred to in this paragraph, regardless
of whether or not City has prepared, supplied or
approved of Plans and/or Specifications for the
subdivision, or regardless of whether or not such
insurance policies shall have been determined to be
applicable to any of such damages or claims for
damages.
This provision is not intended to create any cause of action in
favor of any third party against Subdivider/Developer or the City
or to enlarge in any way the Subdivider's/Developer's liability
but is intended solely to provide for indemnification of the City
20 from liability for damage or injuries to third persons or
21 property arising from Subdivider/Developer's performance
22 hereunder.
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Title to Improvements.
Title to, and ownership of,
24 all improvements constructed hereunder by Subdivider shall vest
25 absolutely in City, upon completion and acceptance of such
26 improvements by City.
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September 20, 1990
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Repair or Reconstruction of Defective Work.
If,
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within a period of one year after final acceptance of the work
performed under this Agreement, any structure or part of any
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structure furnished and/or installed or constructed, or caused to
be installed or constructed by Subdivider, or any of the work
done under this Agreement, fails to fulfill any of the
7 requirements of this Agreement or the Specifications referred to
8 herein, Subdivider shall, without delay and without any cost to
9 City, repair or replace or reconstruct any defective or otherwise
unsatisfactory part or parts of the work or structure.
Should
11 Subdivider fail to act promptly or in accordance with this
12 requirement, or should the exigencies of the situation as
13 determined by the City in the exercise of its sole discretion
14 require repair, replacement or reconstruction before the
15 Subdivider can be notified, City may, at its option, make the
16 necessary repairs or replacements or perform the necessary work,
17 and Subdivider shall pay to the City the actual cost of such
18 repairs plus fifteen percent (15%).
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16.
Subdivider Not Agent of City. Neither Subdivider nor
20 any of Subdivider's agents or contractors are, or shall be,
~ considered to be agents of City in connection with the
22 performance of Subdivider's obligations under this Agreement.
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17.
Cost of Engineering and Inspection. Subdivider shall
24 pay to City the costs of all permit fees for all engineering
25 inspections and other services connected with the City in regard
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to the subdivision.
Said fees shall be paid prior to commencing
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18.
Notice of Breach and Default.
If Subdivider refuses
or fails to obtain prosecution of the work, or any severable part
thereof, with such diligence as will insure its completion within
the time specified, or any extensions thereof, or fails to obtain
completion of said work within such time, or if the Subdivider
should be adjudged a bankrupt, or Subdivider should make a
general assignment for the benefit of Subdivider's creditors, or
if a receiver should be appointed in the event of Subdivider's
insolvency, or if Subdivider, or any of Subdivider's contractors,
subcontractors, agents or employees, should violate any of the
provisions of this Agreement, City Engineer or City Council may
serve written notice upon Subdivider and Subdivider's surety of
breach of this Agreement, or of any portion thereof, and default
of Subdivider.
19.
Breach of Agreement; Performance by Surety or City.
16 In the event of any such notice, Subdivider's surety shall have
17 the duty to take over and complete the work and the improvement
18 herein specified; provided, however, that if the surety, wi thin
19 five days after the serving upon of such notice of breach, does
20 not give City written notice of its intention to take over the
21 performance of the contract, and does not commence performance
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thereof within five days after notice to City of such election,
City may take over the work and prosecute the same to completion,
by contract or by any other method City may deem advisable, for
the account and at the expense of Subdivider, and Subdivider's
surety shall be liable to City for any excess cost or damages
occasioned City thereby; and, in such event, City, without
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September 20, 1990
~iabi~ity for so doing, may take possession of, and uti~ize in
comp~eting the work, such materia~s, app~iances, p~ant and other
property be~onging to Subdivider as may be on the site of the
work and necessary therefor.
20. Notices.A~~ notices herein required sha~~ be in
writing, and de~ivered in person or sent by registered mai~,
postage p~epaid.
(a) Notices required to be given to City sha~~ be
addressed as fo~~ows:
City Administrator
City Ha~~
300 North "D" Street
San Bernardino, Ca~ifornia
92418
(b) Notices required to be given to Subdivider shall be
addressed as follows:
CIMARRON RANCH ASSOCIATES. a California limited Partnership
C/O Centurv Homes Communities. General Partner
1535 So. "0" Street. Suite #200. San Rernardino. CA <}?408
(e) Notices required to be given to surety of Subdivider
sha~~ be addressed as follows:
Developers Insurance Company. ATTENTION: Susan Honteon
1425 W. Foothill Blvd.. Suite #120. Upland. CA 91786
Provided that any party or the surety may change such address by
notice in writing to the other party, and, thereafter, notices
shall be addressed and transmitted to the new address.
21.
Successors Bound.
This Agreement shall be binding
upon and inure to the benefit of each of the parties and their
respective legal representatives, successors, heirs and assigns.
III
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
ATTEST:
CITY OF SAN
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Ci Clerk
/?
By/
{;U5 "I - 1991 Ho
City of
SUBDIVIDER: CIMARRON NCH SSOCIATES. a
California Limited Partnership
BY: CENTURY HOMES COMMUNITIES, a California
Corporation as General Partner
. (~L
/
Approved as to form
and legal content:
JAMES F. PENMAN,
City Attorney,
By:
INSTRUCTIONS
If the Subdivider is a corporation, the Agreement must be
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executed in the corporate name' and signed bY:the 'President or a
Vice-President and th~ Secretary or Assistant Secretary, and the
corporate seal affixed. .If the Subdivider isa partnership, it
must be signed by all partners.
If the Subdivider is an
18 individual doing business under a fictitious name, it must be
19 signed by all persons having an interest in the business, and the
20 fictitious name must 'be "signed also. .. The Agreement must be
21 notarized.
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STATE OF CALIFORNIA
)
) ss.
)
COUNTY OF SAN BERNARDINO
On this 18th day of June , 19 91 , before
me, the undersigned, a Notary Public in and for said County and
State, personally appeared
Gary Weintraub
personally known to me (or proved to me on the basis of
satisfactory evidence to be tI;i~/ / / / / / / / / / / / / / liiItes&J1riilfJ, and
BAS/mgl[Subdivimp.Agr] 15
September 20, 1990
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Jerry McCue
personally known to me (or proved to me on the
satisfactory evidence) to be the Assistant Secretaries
of the corporation that executed
the within instrument, and known
to me to be the persons who
executed the within instrument
on behalf of the corporation
therein named, and acknowledged
to me that such corporation
executed the same, pursuant to
its by-laws, or a resolution of
its Board of Directors.
WITNESS my hand and official seal.
'"
)' c./ ..
u!u.. ,/1~
NQtary Sig ature
Debra L. Jense"fl
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September 20, 1990
basis of
OFFICIAL SEAL
DEBRA L. JENSEN
NOTARY PUBUC . CAlIFORNIA
RIVERSIDE COUNTY
My Olmm. Expire. July 23, 1993
(This area for official seal.)
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1Z..c, '1/-3(1).
AGREEMENT
(Subdivision Improvements)
THIS AGREEMENT is made and entered into as of this
day of
, 19____, by and between the CITY OF SAN
BERNARDINO, a Municipal Corporation, hereinafter referred to as
CIMARRON RANCH ASSOCIATES C l-f . L' 't d Partnership
"City", and . a a 1 ornla lml e , hereinafter
referred to as "Subdivider".
RECITALS
A. WHEREAS, Subdivider has presented to City for
approval a final subdivision map (hereinafter called "map")
entitled
Tract 14503-1
; and,
B. WHEREAS, the map has been filed with the City for
presentation to the City Council (hereinafter called "Counci 1 " )
of the City for its approval, which map is hereby referred to and
incorporated herein; and,
c. WHEREAS, Subdivider has requested approval of the map
prior to the construction and completion of improvements,
including all streets, highways or public ways and public utility
facilities which are a part of, or appurtenant to, the
subdivision (hereinafter called "subdivision") designated in the
map, all in accordance with, and as required by, the Plans and
Specifications for all or any of said improvements in,
appurtenant to, or outside the limits of subdivision, which Plans
and Specifications are now on file in the Office of the City
Engineer of the City; and,
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D.
WHEREAS, Council has approved said map and accepted
the dedications therein offered, or some thereof, on condition
that Subdivider first enter into and execute this Agreement with
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the City; and,
E.
WHEREAS, This Agreement is executed pursuant to the
provisions of the Subdivision Map Act of the State of California
and Title,lS San Bernardino Municipal Code.
NOW THEREFORE, for and in consideration of the approval of
the map and of the acceptance of the dedications, or some
thereof, therein offered and in orde.r to insure satisfactory
performance by Subdivider of Subdivider's obligations under said
Subdivision Map Act and said Ordinance, the parties agree as
follows:
1.
Performance of Work.
Subdivider will do and perform,
15 or cause to be done and performed, at Subdivider's own expense,
16 in a good and workmanlike manner, and furnish all required
17 materials, all to the satisfaction of the City Engineer of City,
18 the work and improvements within (and/or without) the subdivision
19 to complete the improvements in accordance with the Plans and
20 Specifications on file as hereinbefore specified, or with any
21 changes required or ordered by said Engineer which, in his
22 opinion, are necessary or required to complete the work.
23
24 of said work is to be done at the places, of the materials, in
2. Work: Places and Grades to be Fixed by Engineer. All
25 the manner, and at the grades, all as shown upon the Plans and
26 Specifications therefor, heretofore approved by City Engineer and
27 which are now on file in his office, and to the satisfaction of
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September 20, 1990
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said City Engineer.
3.
Work:
Time for Commencement and Performance.
City
hereby fixes the time for the completion of said work to be
within twenty-four (24) months
from the date hereof.
4. Time of Essence - Extension. Time is of the essence of
this Agreement; provided that, in the event good cause is shown
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therefor, the City Engineer may extend the time for completion of
the improvements hereunder.
Any such extension may be granted
9 without notice to the Subdivider's surety, and extensions so
10 granted shall not relieve the surety's .liability on the bond to
11
secure the faithful performance of this Agreement.
The City
12 Engineer shall be the sole and final judge as to whether or not
13 good cause has been shown to entitle Subdivider to an extension.
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15 have replaced, or repair, or have repaired, as the case may be,
5. Repairs and Replacements. Subdivider shall replace, or
16 all pipes and monuments shown on the map which have been
17 destroyed or damaged, and Subdivider shall replace, or have
18 replaced, repair, or have repaired, as the case may be, or pay to
19 the owner the entire cost of replacement or repairs, of any and
20 all property damaged or destroyed by reason of any work done
21 hereunder, whether such property be owned by the United States,
22 or any agency thereof, or the State of California, or any agency
23 or political subdivision thereof, or by the City, or by any
24 public or private corporation, or by any person whomsoever, or by
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any combination of such owners.
Any such repair or replacement
26 shall be to the satisfaction, and subject to the approval, of the
27 City Engineer.
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6.
uti1ity Deposits - Statement.
Subdivider shall file
with the City Clerk, prior to the commencement of any work to be
performed within the area delineated on the map, a written
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statement signed by Subdivider, and each public utility
corporation involved, to the effect that Subdivider has made all
deposits legally required by such public utility corporation for
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the connection of any and all public utilities to be supplied by
such public utility corporation within the Subdivision.
7.
Permits:
Comp1iance with Law.
Subdivider shall, at
10 Subdivider's expense, obtain all necessary permits and licenses
11 for the construction of such improvements, give all necessary
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notices and pay all fees and taxes required by law.
Subdivider
13 shall comply with all provisions of the Subdivision Map Act and
14 Tit1e 18 San Bernardino Municipal Code.
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8.
Superintendence by Subdivider.
Subdivider shall give
16 personal superintendence to the work on said improvement, or have
17 a competent foreman or superintendent, satisfactory to the City
18 Engineer on the work at all times during progress, with authority
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19 to act for Subdivider.
9.
21 maintain proper facilities and provide safe access for inspection
Inspection by City.
Subdivider shall at all times
22 by City to all parts of the work and to the shops wherein the
23 work is in preparation.
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10.
Contract Security.
Concurrently with the execution
25 hereof, Subdivider shall furnish to City improvement security as
26 follows:
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(a) An amount equal to at least one hundred percent (100%)
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of the total estimated cost of the improvement and
acts to be performed as security for the faithful
performance of this Agreement;
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(b) An amount equal to at least fifty percent (50%) of the
total estimated cost of the improvements and acts to
be performed as security for the payment of all
.' persons performing labor and furnishing materials in
connection with this Agreement; and,
(c) An amount equal to at least twenty-five percent (25%)
of the total estimated cost of the improvements and
acts to be performed as security for the guarantee and
warranty of the work for a period of one (1) year
following the completion and acceptance thereof
against any defective work or labor done, or defective
materials furnished.
As a part of the obligation guaranteed by the
security and in addition to the face amount of the
security, there shall be included costs and reasonable
expenses and fees, including reasonable attorney's
fees, incurred by City in successfully enforcing the
obligation secured.
The type of security furnished
shall be in the form of bonds, deposits or letters of
credit as provided in Title 18 San Bernardino
24 Municipal Code, and the type shall be at the option of
25 and subject to the approval of the City Engineer and
26 the City Attorney.
27 / / /
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11. Subdivider's Insurance. Subdivider shall not commence
work under this Agreement until Subdivider shall have obtained
all insurance required under this paragraph, and such insurance
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shall have been approved by City Attorney as to form, amount and
carrier, nor shall Subdivider allow any contractor or
6 subcontractor to commence work on his contract or subcontract
7 until all similar insurance required of the contractor or
subcontractor shall have been so obtained and approved.
All
requirements herein provided shall appear either in the body of
the insurance policies or as endorsements and shall specifically
bind the insurance carrier.
(a)
Workers Compensation Insurance/Employer's Liability
Insurance. Subdivider shall maintain, during the life
of this Agreement, Worker's Compensation Insurance and
Employer's Liability Insurance for all Subdivider's
employees employed at the site of improvement, and, in
case any work is sublet, Subdivider shall require any
contractor or subcontractor similarly to provide
Worker's Compensation Insurance and Employer's
Liability Insurance for all contractor's or
subcontractor's employees, unless such employees are
covered by the protection afforded by Subdivider. In
case any class of employees engaged in work under this
Agreement at the site of the project is not protected
under any Worker's Compensation Law, Subdivider shall
provide, and shall cause each contractor and
subcontractor to provide, adequate insurance for the
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protection of employees not otherwise protected.
Subdivider shall indemnify City for any damage
resulting to it from failure of either Subdivider or
any contractor or subcontractor to take out or
maintain such insurance.
(b) Public Liabil.ity and Property Damage Insurance.
Subdivider shall take out and maintain, during the
life of this Agreement, such public liability and
property damage insurance as shall insure City, its
elective and appointive boards, commissions, officers,
agents and employees, Subdivider and any contractor or
subcontractor performing work covered by this
Agreement from claims for damages for personal injury,
(as defined hereunder), including death, as well as
from claims for property damage or product liability
which may arise from Subdivider's or any contractor's
or subcontractor's operations hereunder, whether such
operations be by Subdivider or any contractor or
subcontractor, or by anyone, including, without
limitation, agents, employees or :independent
contractors, d:irectly or :indirectly employed by either
Subdivider or any contractor or subcontractor, and the
amounts of such insurance shall be as follows:
(l.) Publ.ic Liabil.:ity Insurance.
In an amount not
less than One Million Dollars ($1,000,000.00) for
injuries, including, but not limited to, death,
to anyone person, and, subject to the same limit
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for each person, in an amount not less than One
Million Dollars ($1,000,000.00) on account of any
one occurrence; Product Liability Insurance
coverage should be part of the Public Liability
Insurance;
(2) Property Damage Insurance. In an amount not less
than One Million Dollars ($1,000,000.00)
for damage to the property of each person on
,
account of anyone occurrence.
In the event that any of the aforesaid insurance
pOlicies provided for in this Paragraph 11 insures any
entity, person, board or commission other than those
mentioned in this paragraph, such policy shall contain
a standard form of cross-liability endorsement,
insuring on such pOlicy City, its elective and
appointive boards, commissions, officers, agents and
employees, Subdivider and any contractor or
subcontractor performing work covered by this
Agreement.
(3) Tail Coverage.
Insurance coverage, albeit for
public liability or property damage, shall be
written, if possible, on an "occurrence" form
rather than a "claims made" policy.
If the
insurance policy is written on a "claims made"
policy, then additional coverage, entitled "tail
coverage" must be purchased to cover a period of
one (1) year from completion of the project. All
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subcontractors must and shall comply with the
same insurance provisions as the contractor(s)
and subdivider(s).
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(4) Personal Injury - Defined.
As used herein, the
term "personal injury" shall be defined as a hurt
or damage to one's person including, without
limitation, damage to health, cuts, bruises,
broken I imbs and/or bones, or the like,
disabilities or impairments, including
aggravation of existing injuries, on invasion of
personal rights, including libel or slander
criminal conversation, malicious prosecution,
false imprisonment and mental suffering.
12.
Evidence of Insurance.
Subdivider and contractor
15 shall furnish City, concurrently with the execution hereof, with
16 satisfactory evidence of the insurance required, and evidence
17 that City is named and endorsed on the policy as an additional
18
insured.
Subdivider and contractor shall also provide City with
19 evidence that each carrier will be required to give City at least
20 ten (10) days prior written notice of the cancellation or
21 reduction in coverage of any policy during the effective period
22 of this Agreement.
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13.
Hold Harmless/Indemnification.
Subdivider(s)/
24 Developer(s) hereby agree to and shall protect, defend, indemnify
25 and hold the City and its elective and appointive boards,
26 commissions, officers, agents, employees and servants free and
27 harmless from any and all liability losses, damages, claims,
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liens, demands and cause of action of every kind and character
including, but not limited to, the amounts of judgments,
penalties, interests, court costs, attorney's/legal fees, and all
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other expenses incurred by the City arising in favor on any
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party, including claims, liens, debts, demands for lost wages or
compensation, personal injuries, including employees of the City,
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death or damages to property (including property of the City) and
without limitation by enumeration, all other claims or demands of
9 every character occurring or in any way incident to, in
connection with or arising directly or indirectly, (including
from the negligent performance by its officers, employees,
12 agents) from the terms of this Agreement, whether such
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operations/incidents are caused by contractor, Subdivider or any
of contractor/Subdivider's subcontractors, contractors or by any
one or more persons directly or indirectly employed by or acting
as agent for contractor, Subdivider, or anyone of contractor or
17 Subdivider's contractors or subcontractors. Subdivider/Developer
18 shall investigate, handle, respond to, provide defense for and
19 defend any such claims, demand, or suit at the sole expense of
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20 the Subdivider/Developer even if the claim or claims alleged are
groundless, false or fraudulent.
Subdivider agrees to, and
22 shall, defend City, its appointive boards, commissions, officers,
23 agents and employees from any suits or actions at law or in
24 equity for damages caused, or alleged to have been caused, by
25 reason of any of the aforesaid operations, provided as follows:
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(a) That City does not, and shall not, waive any rights
against Subdivider which it may have by reason of the
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aforesaid hold harmless agreement, because of the
acceptance by City, or the deposit with City by
Subdivider, or any of the insurance pOlicies described
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in Paragraph 11 hereof.
(b) That the aforesaid hold harmless agreement by
Subdivider shall apply to all damages and claims for
damages of every kind suffered, or alleged to have
been suffered, by reason of any of the aforesaid
operations referred to in this paragraph, regardless
of whether or not City has prepared, supplied or
approved of Plans and/or Specifications for the
subdivision, or regardless of whether or not such
13 insurance pOlicies shall have been determined to be
14 applicable to any of such damages or claims for
15 damages.
16 This provision is not intended to create any cause of action in
17 favor of any third party against Subdivider/Developer or the City
18 or to enlarge in any way the Subdivider' s/Developer' s liability
19 but is intended solely to provide for indemnification of the City
20 from liability for damage or injuries to third persons or
21 property arising from Subdivider/Developer's performance
22 hereunder.
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14.
Title to Improvements.
Title to, and ownership of,
24 all improvements constructed hereunder by Subdivider shall vest
25 absolutely in City, upon completion and acceptance of such
26 improvements by City.
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15.
Repair or Reconstruction of Defective Work.
If,
wi thin a period of one year after final acceptance of the work
performed under this Agreement, any structure or part of any
4 structure furnished and/or installed or constructed, or caused to
5 be installed or constructed by Subdivider, or any of the work
6 done under this Agreement, fails to fulfill any of the
7 requirements of this Agreement or the Specifications referred to
8 herein, Subdivider shall, without delay and without any cost to
9 City, repair or replace or reconstruct any defective or otherwise
10
unsatisfactory part or parts of the work or structure.
Should
11 Subdivider fail to act promptly or in accordance with this
12 requirement, or should the exigencies of the situation as
13 determined by the City in the exercise of its sole discretion
14 require repair, replacement or reconstruction before the
15 Subdivider can bf\! notified, City may, at its option, make the
16 necessary repairs or replacements or perform the necessary work,
17 and Subdivider shall pay to the City the actual cost of such
18 repairs plus fifteen percent (15%).
19
16.
Subdivider Not Agent of City. Neither Subdivider nor
20 any of Subdivider's agents or contractors are, or shall be,
21 considered to be agents of City in connection with the
22 performance of Subdivider's obligations under this Agreement.
23
17.
Cost of Engineering and Inspection. Subdivider shall
24 pay to City the costs of all permit fees for all engineering
25 inspections and other services connected with the City in regard
26 to the subdivision. Said fees shall be paid prior to commencing
27 any construction.
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18.
Notice of Breach and Default.
If Subdivider refuses
or fails to obtain prosecution of the work, or any severable part
thereof, with such diligence as will insure its completion within
the time specified, or any extensions thereof, or fails to obtain
completion of said work within such time, or if the Subdivider
should be adjudged a bankrupt, or Subdivider should make a
general assignment for the benefit of Subdivider's creditors, or
if a receiver should be appointed in the event of Subdivider's
insolvency, or if Subdivider, or any of Subdivider's contractors,
subcontractors, agents or employees, should violate any of the
provisions of this Agreement, City Engineer or City Council may
serve written notice upon Subdivider and Subdivider's surety of
breach of this Agreement, or of any portion thereof, and default
of Subdivider.
19.
Breach of Agreement; Performance by Surety or City.
16 In the event of any such notice, Subdivider's surety shall have
17 the duty to take over and complete the work and the improvement
18 herein specified; provided, however, that if the surety, wi thin
19 five days after the serving upon of such notice of breach, does
20 not give City written notice of its intention to take over the
21 performance of the contract, and does not commence performance
22 thereof within five days after notice to City of such election,
23 City may take over the work and prosecute the same to completion,
24 by contract or by any other method City may deem advisable, for
25 the account and at the expense of Subdivider, and Subdivider's
261 surety shall be liable to City for any excess cost or damages
27 I occasioned City thereby; and, in such event, City, without
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liability for so doing, may take possession of, and utilize in
completing the work, such materials, appliances, plant and other
property belonging to Subdivider as may be on the site of the
work and necessary therefor.
20.
Notices . All notices herein required shall be in
writing, and delivered in person or sent by registered mail,
7 postage prepaid.
(a) Notices required to be given to City shall be
addressed as follows:
City Administrator
Ci ty Hall
300 North "D" Street
San Bernardino, California
92418
(b) Notices required to be given to Subdivider shall be
addressed as follows:
. CIMARRON RANCH ASSOCIATES. a California Limited Partnership
C/O Centurv Homes Communities. General Partnpr
1535 So. "0" Street. Suite #200. San Bernardino. CA Q?40R
(c) Notices required to be given to surety of Subdivider
shall be addressed as follows:
Developers Insurance Company. ATTENTION: Susan Monteon
20 1425 W. Foothill Blvd.. Suite 1120. Upland. CA 91786
21 Provided that any party or the surety may change such address by
22 notice in writing to the other party, and, thereafter, notices
23 shall be addressed and transmitted to the new address.
24
21.
Successors Bound.
This Agreement shall be binding
25 upon and inure to the benefit of each of the parties and their
26 respective legal representatives, successors, heirs and assigns.
27 III
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
ATTEST:
CITY OF
~ ~.~I~
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AJS '1- i9J~. .'
Ci
SUBDIVIDER: CIMA N RA CH ASSOCIATES. a
California Limited Partnership
BY: CENTURY HOMES COMMUNITIES. a California
Corporation as 'General Partner
rY] ~ Lu..L
c
/'
Approved as to form
and legal content:
JAMES F. PENMAN,
City Attorney,
By:
By:
By:
':7
v~-
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INSTRUCTIONS
If the Subdivider is a corporation, the Agreement must be
executed in the corporate name and signe~by the President or a
Vice-President and the Secretary or Assistant Secretary, and the
corporate seal affixed.
If the Subdivider is a partnership, it
must be signed by all partners.
If the Subdivider is an
individual doing business under a fictitious name, it must be
signed by all persons having an interest in the business, and the
fictitious name must be 'signed also.
The Agreement must be
notarized.
STATE OF CALIFORNIA
)
) ss.
)
COUNTY OF
SAN BERNARDINO
On this 18th day of June
me, the undersigned, a Notary Public in and for
state, personally appeared
Gary Weintraub
personally known to me (or proved to me on the basis
satisfactory evidence to be Ir.Hfi / / / / / / / / / / / / / /pWii.IJ/,frU:.t and
, 19 91 , before
said County and
of
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.. .. .,
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Jerry McCue
personally known to me (or proved to me on the
satisfactory evidence) to be the Assistant Secretaries
of the corporation that executed
the within instrument, and known
to me to be the persons who
executed the within instrument
on behalf of the corporation
therein named, and acknowledged
to me that such corporation
executed the same, pursuant to
its by-laws, or a resolution of
its Board of Directors.
WITNESS my hand and official seal.
) fl~/:;I?k~
, Nota~/signature
Debra L. Jensen
BAS/mgl[Subdivimp.Agr] 16
September 20, 1990
basis of
OFFICIAL SEAL
DEBRA L JENSEN
NOTARY PUBLIC. Cl<.FOIlNlA
RIVERSIDE COUNTY (;
My Ollmm. Expire. July 23. 1'" ~
(This area for official seal.)