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HomeMy WebLinkAbout06 Release Bonds Chase Bank PrjctSTAFF REPORT CITY OF PALM DESERT PUBLIC WORKS DEPARTMENT MEETING DATE: February 25, 2021 PREPARED BY: Christina Canales, Engineering Assistant REQUEST: Accept off-site improvements and authorize the release of bonds in the total amount of $68,592.15 for the Chase Bank Project. ________________________________________________________________________ Recommendation Accept off-site improvements and authorize the release of bonds in the total amount of $68,592.15 for the Chase Bank Project. Strategic Plan This motion does not impact the Strategic Plan. Background Analysis The Chase Bank project is located on the northwest corner of Highway 111 and Monterey Avenue. At the time of permit issuance, the developer, 111 Monterey Palm, LLC, submitted a Faithful Performance Bond in the amount of $45,728.10 and a Labor and Materials Bond in the amount of $22,864.05 for off-site improvements. Off-site improvements to Highway 111 include the construction of a right-turn lane into the project, sidewalk, driveway, and curb ramp modification. All off-site improvements are complete for this project. The one-year maintenance period has passed. Staff has recently inspected the constructed off-site improvements and verified that improvements are still in acceptable condition. Therefore, staff recommends that the City Council accept off-site improvements and authorize the release of bonds in the total amount of $68,592.15 for the Chase Bank Project. Fiscal Analysis There is no fiscal impact associated with this action. February 25, 2021 -Staff Report Accept off-site improvements and authorize the release of bonds in the total amount of $68,592 .15 for the Chase Bank Project. Page 2 of 2 LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW N/A .'A.nay :Fir es t in e 1-~ 1'11. 1'1100 ,u, Robert W . Hargreaves Andy Firestine Janet M . Moore City Attorney Assistant City Manager Director of Finance Interim City Manager , Randy Bynder: Randy Synder APPLICANT: Alex Osinski 111 Monterey Palm Desert , LLC 23727 Hawthorne Bou levard , 2nd Floor Torrance, CA 90505 ATTACHMENTS : Vicinity Map Agreement Bonds CITY COUNCILA£TION ASSISTANT CITY MANAGER .'A.nay :Firestine Andy F irestine Assistant City Manager APPROVED __ v ___ DENTED------ RECEIVED ______ OTHER _____ _ MEETING DATE '2-. -2.-'5-'2.-02.,,I ~~~~·=H'ijn!;zf:onru-ban , NestAY¥Je 1Gu,rn:cro;uei , x~1 'f ABSENT: ____ h)...,,0.._Yl....;e,~---------- ABSTAIN: N ITT\e VERIFIED BY:-.i..b=l=t'<;;../i...S.;.... r_s _______ _ Original on File with City Clerk's Office VICINITY MAP-CHASE BANK PROJECT Legend 4401: Notes Circulation Network Streets City Boundary Parcels (10/2020) [This page has intentionally been left blank.] I I I y Of P H I M OESERi 73-510 FRED WARING DRIVE PALM DESERT, CALIFORNIA 92260-2578 TEL: 760 346—o6i i info@cityofpalmdesert.org May 7, 2019 Mr. Alex Osinski 111 Monterey Palm LLC 23727 Hawthorne Boulevard, 2"d Floor Torrance, California 90505 Dear Mr. Osinksi: Subject: Improvement Agreement for the Proposed Chase Bank Enclosed for your records is a fully executed copy of the subject Agreement. If you have any questions or require additional information, please do not hesitate to contact us. Sincerely, S RACHELLE D. KLASSEN, MMC CITY CLERK 7D RDK:mgs Enclosure (as noted) cc/enc: Tom Garcia, P.E., Director of Public Works All PRIMP. - RECYCLED -1- IMPROVEMENT AGREEMENT DATE OF AGREEMENT:, APRIL 16 20 19 NAME OF DEVELOPER: 111 MONTEREY PALM LLC, A CA LLC (referred to as "DEVELOPER") NAME OF DEVELOPMENT: CHASE BANK (referred to as "DEVELOPMENT") DEVELOPMENT RESOLUTION OF APPROVAL NO.: Resolution 2743 (referred to as "Resolution of Approval") IMPROVEMENT PLANS NO.: E-989 (referred to as "Improvement Plans") ESTIMATED TOTAL COST OF IMPROVEMENTS:$ $45,728.10 SURETY: SURETEC INSURANCE COMPANY LETTER OF CREDIT/BOND NOS.: yy Z' j qj This Agreement is made and entered into by and between the City of Palm Desert, a municipal corporation of the State of California, hereinafter referred to as "CITY", and the DEVELOPER. Revised 9/12/17 RECITALS A. DEVELOPER has presented to CITY for approval a Conditional Use Permit/Precise Plan of Development pursuant to provisions of the CITY's ordinances and regulations relating to development approval. B. A Conditional Use Permit/Precise Plan of Development has been approved, subject to the requirements and conditions contained in the Resolution of Approval. The Resolution of Approval is on file in the Office of the Director of Community Development and incorporated into this Agreement by reference. C. In consideration of the approval of a Conditional Use Permit/Precise Plan of Development for the DEVELOPMENT by the Planning Commission, DEVELOPER desires to enter into this Agreement, whereby DEVELOPER promises to install and complete, at DEVELOPER's own expense, all the public improvement work required by CITY in connection with the proposed DEVELOPMENT. DEVELOPER has secured this Agreement by improvement security required by the City and approved by the City Attorney. D. Complete Improvement Plans for the construction, installation, and completion of the improvements have been prepared by DEVELOPER and approved by the City Engineer. The Improvement Plans numbered as referenced previously in this Agreement are on file in the Office of the City Engineer and are incorporated into this Agreement by this reference. All references in this Agreement to the Improvement Plans shall include reference to any specifications for the improvements as approved by the City Engineer. E. An estimate of the cost for construction of the public improvements and performing land development work in connection with the improvements according to the Improvement Plans has been made and has been approved by the City Engineer. The estimated amount is stated on Revised 9/12/17 Page 1 of this Agreement. The basis for the estimate is on file in the Office of the City Engineer and is incorporated into this agreement by reference. F. CITY has adopted standards for the construction and installation of improvements within the CITY. The Improvement Plans have been prepared in conformance with CITY standards in effect on the date of the Resolution of Approval. NOW, THEREFORE, in consideration of the approval of the DEVELOPMENT, DEVELOPER and CITY agree as follows: (1) DEVELOPER's Obligation to Construct Improvements. DEVELOPER shall: (a) Comply with all the requirements of the Resolution of Approval, and any amendments thereto. (b) Complete at DEVELOPER's own expense, all the public improvement work required by the Resolution of Approval in conformance with approved Improvement Plans within one year from date of execution of this Agreement. (c) Furnish the necessary materials for completion of the public improvements in conformity with the Improvement Plans. (d) Acquire, or pay the cost of acquisition by CITY, and dedicate all rights -of - way, easements and other interests in real property for construction and installation of the public improvements, free and clear of all liens and encumbrances. The DEVELOPER's obligations with regard to acquisition by CITY of off -site rights - of -way, easements and other interests in real property shall be subject to a separate agreement between DEVELOPER and CITY. Revised 9n2/17 3 DEVELOPER shall also be responsible for obtaining any public or private sanitary sewer, domestic water, drainage, and/or utility easements or authorization to accommodate the DEVELOPMENT. (e) Commence construction of the improvements by the time established in Section (21) of this Agreement and complete the improvements by the deadline stated in Section (1)(b) above, unless a time extension is granted by the CITY as authorized in Section (21). (2) Acquisition and Dedication of Easements or Rights -of -Way. If any of the public improvement and land use development work contemplated by this Agreement is to be constructed or installed on land not owned by CITY or DEVELOPER, no construction or installation shall be commenced before: (a) The offer of dedication to CITY of appropriate rights -of -way, easements or other interests in real property, and appropriate authorization from the property owner to allow construction or installation of the improvements or work, or (b) The dedication to, and acceptance by, CITY of appropriate rights -of -way, easements or other interests in real property, as determined by the City Engineer, or (c) The issuance by a court of competent jurisdiction pursuant to the State Eminent Domain Law of an order of possession. DEVELOPER shall comply in all respects with the order of possession. Nothing in this Section (2) shall be construed as authorizing or granting an extension of time to DEVELOPER. Revised 9/12/17 4 (3) Security. DEVELOPER shall at all times guarantee DEVELOPER's performance by furnishing to CITY, and maintaining, good and sufficient security as required on forms approved by CITY for the purposes and in the amounts as follows: (a) to assure faithful performance of this Agreement in regard to said improvements in an amount of 100% of the estimated cost of the improvements; and (b) to secure payment to any contractor, subcontractor, persons renting equipment, or furnishing labor and materials for the improvements required to be constructed and installed pursuant to this Agreement in the additional amount of 50% of the estimated cost of the improvements; and The securities required by this Agreement shall be kept on file with the City Clerk. The terms of the security documents referenced on page 1 of this Agreement are incorporated into this Agreement by this reference. If any security is replaced by another approved security, the replacement shall: 1) comply with all the requirements for security in this Agreement; 2) be provided to the City Engineer to be filed with the City Clerk and, upon filing, 3) shall be deemed to have been made a part of and incorporated into this Agreement. Upon provision of a replacement security with the City Engineer and filing of a replacement security with the City Clerk, the former security may be released. (4) Alterations to Improvement Plans. (a) Any changes, alterations or additions to the Improvement Plans not exceeding ten percent (10%) of the original estimated cost of the improvements, which are mutually agreed upon by CITY and DEVELOPER, shall not relieve the improvement security given for faithful performance of this Agreement. In the Revised 9/12/17 5 event such changes, alterations, or additions exceed 10% of the original estimated cost of the improvement, DEVELOPER shall provide improvement security for faithful performance as required by Section (3) of this Agreement for one hundred percent (100%) of the total estimated cost of the improvements as changed, altered, or amended, minus any completed partial releases allowed by Section (6) of this Agreement. (b) The DEVELOPER shall construct the improvements in accordance with CITY standards in effect at the time of adoption of the Resolution of Approval. CITY reserves the right to modify the standards applicable to the DEVELOPMENT and this Agreement, when necessary to protect the public safety or welfare or comply with applicable state or federal law or CITY zoning ordinances. If DEVELOPER requests and is granted an extension of time for completion of the improvements, CITY may apply the standards in effect at the time of the extension. (5) Inspection. DEVELOPER shall at all times maintain proper facilities and safe access for inspection of the public improvements by CITY inspectors and to the shops wherein any work is in preparation. Upon completion of the work, DEVELOPER may request a final inspection by the City Engineer, or the City Engineer's authorized representative. If the City Engineer, or the designated representative, determines that the work has been completed in accordance with this Agreement, then the City Engineer shall certify the completion of the public improvements to the City Council. No improvements shall be finally accepted unless all aspects of the work have been inspected and completed in accordance with the Improvement Plans. When applicable law requires an inspection to be made by City at a particular stage of the work of constructing and installing such improvements, CITY shall be given timely notice of DEVELOPER's readiness for such inspection and Revised 9/12/17 6 DEVELOPER shall not proceed with additional work until the inspection has been made and the work approved. DEVELOPER shall bear all costs of inspection and certification. No improvements shall be deemed completed until accepted pursuant to Section (16) herein. (6) Release of Securities. The securities required by this Agreement shall be released as following: (a) Security given for faithful performance of any act, obligation, work or agreement shall be released upon the final completion and acceptance of the act or work, subject to the provisions of subsection (b) hereof. (b) The City Engineer may release a portion of the security given for faithful performance of improvement work as the improvement progresses upon application thereof by the DEVELOPER; provided, however, that no such release shall be for an amount less than twenty-five percent (25%) of the total improvement security given for faithful performance of the improvement work and that the security shall not be reduced to an amount less than fifty percent (50%) of the total improvement security given for faithful performance until final completion and acceptance of the improvement work. In no event shall the City Engineer authorize a release of the improvement security which would reduce such security to an amount below that required to guarantee the completion of the improvement work and any other obligation imposed by this Agreement. (c) Security given to secure payment to the contractor, his or her subcontractors and to persons furnishing labor, materials or equipment shall, at six (6) months after completion and acceptance of the work, be reduced to an amount equal to no less than 125% of the total claimed by all claimants for whom liens have been filed and of which notice has been given to the CITY, plus an amount reasonably determined Revised 9/12/17 7 by the City Engineer to be required to assure the performance of any other obligations secured by the Security. The balance of the security shall be released upon the settlement of all claims and obligations for which the security was given. (d) CITY may retain from any security released, an amount sufficient to cover costs and reasonable expenses and fees, including reasonable attorneys' fees. (7) Injury to Public Improvements, Public Property or Public Utilities Facilities. DEVELOPER shall replace or repair or have replaced or repaired, as the case may be, all public improvements, public utilities facilities and surveying or subdivision monuments which are destroyed or damaged as a result of any work under this Agreement. DEVELOPER shall bear the entire cost of replacement or repairs of any and all public or public utility property damaged or destroyed by reason of any work done under this Agreement, whether such property is owned by the United States or any agency thereof, or the State of California, or any agency or political subdivision thereof, or by CITY or any public or private utility corporation or by any combination of such owners. Any repair or replacement shall be to the satisfaction, and subject to the approval, of the City Engineer. (8) Permits. DEVELOPER shall, at DEVELOPER's expense, obtain all necessary permits and licenses for the construction and installation of the improvements, give all necessary notices and pay all fees and taxes required by law. Revised 9/12/17 (9) Default of DEVELOPER. (a) Default of DEVELOPER shall include, but not be limited to, (1) DEVELOPER's failure to timely commence construction of this Agreement; (2) DEVELOPER's failure to timely complete construction of the improvements; 8 (3) DEVELOPER's failure to timely cure any defect in the improvements; (4) DEVELOPER's failure to perform substantial construction work for a period of twenty (20) calendar days after commencement of the work; (5) DEVELOPER's insolvency, appointment of a receiver, or the filing of any petition in bankruptcy either voluntary or involuntary which DEVELOPER fails to discharge within thirty (30) days; (6) the commencement of a foreclosure action against the DEVELOPMENT or a portion thereof, or any conveyance in lieu or in avoidance of foreclosure; or (7) DEVELOPER's failure to perform any other obligation under this Agreement. (b) CITY reserves to itself all remedies available to it at law or in equity for breach of DEVELOPER's obligations under this Agreement. CITY shall have the right, subject to this Section, to draw upon or utilize the appropriate security to mitigate CITY's damages in event of default by DEVELOPER. The right of CITY to draw upon or utilize the security is additional to and not in lieu of any other remedy available to CITY. It is specifically recognized that the estimated costs and security amounts may not reflect the actual cost of construction or installation of the improvements and, therefore, CITY's damages for DEVELOPER's default shall be measured by the cost of completing the required improvements. The sums provided by the improvement security may be used by CITY for the completion of the public improvements in accordance with the improvement plans and specifications contained herein. Revised 9/12/17 9 (c) In the event of DEVELOPER's default under this Agreement, DEVELOPER authorizes CITY to perform such obligation twenty (20) days after mailing written notice of default to DEVELOPER and to DEVELOPER's surety, and agrees to pay the entire cost of such performance by CITY. 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 DEVELOPER, and DEVELOPER's surety shall be liable to CITY for any excess cost or damages occasioned CITY thereby. In such event, CITY, without liability for so doing, may take possession of, and utilize in completing the work, such materials, appliances, plants and other property belonging to DEVELOPER as may be on the site of the work and necessary for performance of the work. (d) Failure of DEVELOPER to comply with the terms of this Agreement shall constitute consent to the filing by CITY of notice of violation against all proposed improvements in the DEVELOPMENT, or to rescind the approval or otherwise revert the DEVELOPMENT to acreage. The remedy provided by this subsection (c) is in addition to and not in lieu of other remedies available to CITY. DEVELOPER agrees that the choice of remedy or remedies for DEVELOPER's breach shall be in the discretion of CITY. (e) In the event that DEVELOPER fails to perform any obligation hereunder, DEVELOPER agrees to pay all costs and expenses incurred by CITY in securing performance of such obligations, including but not limited to fees and charges of architects, engineers, attorneys, other professionals, and court costs. Revised 9/12/17 10 (f) The failure of CITY to take an enforcement action with respect to a default, or to declare a breach, shall not be construed as a waiver of that default or breach or any subsequent default or breach of DEVELOPER. (10) DEVELOPER Not Agent of CITY. Neither DEVELOPER nor any of DEVELOPER's agents, contractors or subcontractors are or shall be considered to be agents of CITY in connection with the performance of DEVELOPER'S obligations under this Agreement. (11) InjM to Work. Until such time as the improvements are accepted by CITY, DEVELOPER shall be responsible for and bear the risk of loss to any of the improvements constructed or installed. Until such time as all improvements required by this Agreement are fully completed and accepted by CITY, DEVELOPER will be responsible for the care, maintenance of, and any damage to such improvements. CITY shall not, nor shall any officer or employee thereof, be liable or responsible for any accident, loss or damage, regardless of cause, happening or occurring to the work or improvements specified in this Agreement prior to the completion and acceptance of the work or improvements. All such risks shall be the responsibility of and are hereby assumed by DEVELOPER. (12) Warranty. DEVELOPER shall guarantee or warranty the work done pursuant to this Agreement for a period of one year after final formal acceptance of the improvements by the City Council against any defective work or labor done or defective materials furnished. If within the warranty period any work or improvement or part of any work or improvement done, furnished, installed, or constructed by DEVELOPER fails to fulfill any of the requirements of this Agreement or the improvement plans and specifications referred to herein, DEVELOPER shall without delay and without any cost to CITY, repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or Revised 9/12/17 1 1 structure. Should DEVELOPER fail to act promptly or in accordance with this requirement, DEVELOPER hereby authorizes CITY, at CITY's option, to perform the work twenty (20) days after mailing written notice of default to DEVELOPER and to DEVELOPER's surety, and agrees to pay the cost of such work by CITY. Should CITY determine that an urgency requires repairs or replacements to be made before DEVELOPER can be notified, CITY may, in its sole discretion, make the necessary repairs or replacement or perform the necessary work and DEVELOPER shall pay to CITY the cost of such repairs. (13) Environmental Warrantv. Prior to the acceptance of any dedications or improvements by CITY, DEVELOPER shall certify and warrant that neither the property to be dedicated nor DEVELOPER is in violation of any environmental law and neither the property to be dedicated nor the DEVELOPER is subject to any existing, pending or threatened investigation by any federal, state or local governmental authority under or in connection with environmental law. Neither DEVELOPER nor any third party will use, generate, manufacture, produce, or release, on, under, or about the property to be dedicated, any hazardous substance except in compliance with all applicable environmental laws. DEVELOPER has not caused or permitted the release of, and has no knowledge of the release or presence of, any hazardous substance on the property to be dedicated or the migration of any hazardous substance from or to any other property adjacent to, or in the vicinity of, the property to be dedicated. DEVELOPER's prior and present use of the property to be dedicated has not resulted in the release of any hazardous substance on the property to be dedicated. DEVELOPER shall give prompt written notice to CITY at the address set forth herein of: (a) Any proceeding or investigation by any federal, state or local governmental authority with respect to the presence of any hazardous substance on the property to Revised 9/12/17 12 be dedicated or the migration thereof from or to any other property adjacent to, or in the vicinity of, the property to be dedicated; (b) Any claims made or threatened by any third party against CITY or the property to be dedicated relating to any loss or injury resulting from any hazardous substance; and, (c) DEVELOPER's discovery of any occurrence or condition on any property adjoining in the vicinity of the property to be dedicated that could cause the property to be dedicated or any part thereof to be subject to any restrictions on its ownership, occupancy, use for the purpose for which is it is intended, transferability or suit under any environmental law. (14) Other Agreements. Nothing contained in this Agreement shall preclude CITY from expending monies pursuant to agreements concurrently or previously executed between the parties, or from entering into agreements with other developers for the apportionment of costs of water and sewer mains, or other improvements, pursuant to the provisions of the CITY ordinances providing therefore, nor shall anything in this Agreement commit CITY to any such apportionment. (15) DEVELOPER'S Obligation to Warn Public During Construction. Until formal final acceptance of the improvements, DEVELOPER shall give good and adequate warning to the public of each and every dangerous condition existent in said improvements, and will take all reasonable actions to protect the public from such dangerous condition. (16) Vesting of Ownership. Upon formal final acceptance of the work by CITY and recordation of the Resolution of Acceptance of Public Improvements, ownership of the improvements constructed pursuant to this Agreement shall vest in CITY. Revised 9n2/17 13 (17) Final Acceptance of Work. Acceptance of the work on behalf of CITY shall be made by the City Council upon recommendation of the City Engineer after final completion and inspection of all improvements. The City Council shall act upon the Engineer's recommendation within sixty (60) days from the date the City Engineer certifies that the work has been finally completed, as provided in Section (6). Such acceptance shall not constitute a waiver of defects by CITY. (18) Indemnitv/Hold Harmless. CITY or any officer or employee thereof shall not be liable for any injury to persons or property occasioned by reason of the acts or omissions of DEVELOPER, its agents, or employees, contractors and subcontractors in the performance of this Agreement. DEVELOPER further agrees to protect, defend, indemnify and hold harmless CITY, its officials, boards and commissions, and members thereof, agents and employees from any and all claims, demands, causes of action, liability or loss of any sort, because of, or arising out of, acts or omissions of DEVELOPER, its agents, employees, contractors and subcontractors in the performance of this Agreement, except for such claims, demands, causes of action, liability, or loss arising out of the sole active negligence of the CITY, its officials, boards, commissions, the members thereof, agents, and employees, including all claims, demands, causes of action, liability, or loss because of, or arising out of, in whole or in part, the design or construction of the improvements. This indemnification and agreement to hold harmless shall extend to injuries to persons and damages or taking of property resulting from the design or construction of said DEVELOPMENT, and the public improvements as provided herein, and in addition, to adjacent property owners as a consequence of the diversion of waters from the design and construction of public drainage systems, streets and other public improvements. Acceptance by CITY of the improvements shall not constitute an assumption by CITY of any responsibility for any damage or taking covered by Revised 9/12/17 14 this Section. CITY shall not be responsible for the design or construction of the property to be dedicated or the improvements pursuant to the approved improvement plans or map, regardless of any negligent action or inaction taken by CITY in approving the plans or map, unless the particular improvement design was specifically required by CITY over written objection by DEVELOPER submitted to the City Engineer before approval of the particular improvement design, which objection indicated that the particular improvement design was dangerous or defective and suggested an alternative safe and feasible design. After acceptance of the improvements, the DEVELOPER shall remain obligated to eliminate any defect in design or dangerous condition caused by the design or construction defect; however, DEVELOPER shall not be responsible for routine maintenance. Provisions of this Section shall remain in full force and effect for ten (10) years following the acceptance by CITY of the improvements. It is the intent of this Section that DEVELOPER shall be responsible for all liability for design and construction of the improvements installed or work done pursuant to this Agreement and that CITY shall not be liable for any negligence, nonfeasance, misfeasance or malfeasance in approving, reviewing, checking, or inspecting any work or construction. The improvement security shall not be required to cover the provisions of this Section. DEVELOPER shall reimburse CITY for all costs and expenses (including but not limited to fees and charges of architects, engineers, attorneys, and other professionals, and court costs) incurred by CITY in enforcing the provisions of this Section. (19) Personal Nature of DEVELOPER'S Obli atg ions. All of DEVELOPER's obligations under this agreement are and shall remain the personal obligations of DEVELOPER notwithstanding a transfer of all or any part of the property within the DEVELOPMENT subject to this Agreement, and DEVELOPER shall not be entitled to assign Revised 9/12/17 15 its obligations under this Agreement to any transferee of all or any part of the property within the DEVELOPMENT or to any other third party without the express written consent of CITY. (20) Sale or Disnosition of DEVELOPMENT. Seller or other DEVELOPER may request a novation of this Agreement and a substitution of security. Upon approval of the novation and substitution of securities, the DEVELOPER may request a release or reduction of the securities required by this Agreement. Nothing in the novation shall relieve the DEVELOPER of the obligations under Section (17) for the work or improvement done by DEVELOPER. (21) Time of the Essence. Time is of the essence in the performance of this Agreement. (22) Time for Commencement of Work; Time Extensions. DEVELOPER shall commence substantial construction of the improvements required by this Agreement not later than six (6) months after the date of this Agreement. In the event good cause exists as determined by the City Engineer, the time for commencement of construction or completion of the improvements hereunder may be extended for a period or periods not exceeding a total of two (2) additional years. The extension shall be executed in writing by the City Engineer. Any such extension may be granted without notice to DEVELOPER's surety and shall not affect the validity of this Agreement or release the surety or sureties on any security given for this Agreement. The City Engineer shall be the sole and final judge as to whether or not good cause has been shown to entitle DEVELOPER to an extension. Delay, other than delay in the commencement of work, resulting from an act of CITY, act of God, or by storm or inclement weather, strikes, boycotts or similar political actions which prevents the conducting of work, which DEVELOPER could not have reasonably foreseen and, furthermore, were not caused by or contributed to by DEVELOPER, shall constitute good cause for and extension of the time for Revised 9n2n7 16 completion. As a condition of such extension, the City Engineer may require DEVELOPER to furnish new security guaranteeing performance of this Agreement as extended in an increased amount as necessary to compensate for any increase in construction costs as determined by the City Engineer. (23) No Vesting oughts. Performance by DEVELOPER of this Agreement shall not be construed to vest DEVELOPER's rights with respect to any change in any zoning or building law or ordinance. (24) Notices. All notices required or provided for under this Agreement shall be in writing and delivered in person or sent by mail, postage prepaid and addressed as provided in this Section. Notice shall be effective on the date it is delivered in person, or, if mailed, on the date of deposit in the United States mail. Notices shall be addressed as follows unless a written change of address is filed with the City: Notice to CITY: City of Palm Desert 73 -5 10 Fred Waring Drive Palm Desert, California 92260 Attn: Public Works Director Notice to DEVELOPER: 111 MONTEREY PALM LLC 23727 HAWTHORNE BOULEVARD 2ND FLOOR TORRANCE, CALIFORNIA 90505 Notice to SURETY: SURETEC INSURANCE COMPANY 3131 CAMINO DEL RIO NORTH SUITE 1450 SAN DIEGO, CALIFORNIA 92108 Revised 9/12n 7 17 (25) Compliance With Laws. DEVELOPER, its agents, employees, contractors and subcontractors shall comply with all federal, state and local laws in the performance of the improvements and land development work required by this Agreement. (26) Severability. The provisions of this Agreement are severable. If any portion of this Agreement is held invalid by a court of competent jurisdiction, the remainder of the agreement shall remain in full force and effect unless amended or modified by the mutual consent of the parties. (27) Ca tip ons. The captions of this Agreement are for convenience and reference only and shall not define, explain, modify, limit, exemplify, or aid in the interpretation, construction or meaning of any provisions of this Agreement. (28) Litigation or Arbitration. In the event that suit or arbitration is brought to enforce the terms of this Agreement, the prevailing party shall be entitled to litigation costs and reasonable attorneys' fees. (29) Incorporation of Recitals. The recitals to this Agreement are hereby incorporated into in the terms of this Agreement. (30) Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter. All modifications, amendments, or waivers of the terms of this Agreement must be in writing and signed by the appropriate representatives of the parties. (31) Interpretation. This Agreement shall be interpreted in accordance with the laws of the State of California. (32) Jurisdiction. Jurisdiction of all disputes over the terms of this Agreement shall be in the County of Riverside, State of California. Revised 9/12/17 18 IN WITNESS WHEREOF, this Agreement is executed by the parties as of the date hereinabove first written; by CITY, by and through its Mayor. 111 MONTEREY PALM LLC CITY OF PALM DESERT ROBERT M. JONAS, NAGER DEVELOPERS DAN ALMQUIST, MANAGER DEVELOPER (Proper Notarization of DEVELOPER'S signature is required and shall be attached) By: L AIAN, CITY MANAGER ATTEST APPROVED AS TO FQRM: i Revised 9/12/17 19 ACKNOWLEDGEMENT A notary public or other officer completing 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 LOS ANGELES On \ \� , 20 19 , before me, MARY W. CARNES , a Notary Public, personally appeared eared ROBERT M. JONAS & DAN ALMQUIST ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) are ubscribed to the within instrument and acknowledged to me that 66/00/they Pxecuted the same in h\A/h /their' thorized capacity(ies), and that by h1s/1/their gnature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. *my MARY W. CARNES Notary Public • CaliforniaLos Angeles County Commission N 2267227 Signature C3aC �� Comm. Expires Dec 13, 2022 Revised 9/12/17 20 Revised 9/12/17 21 CITY OF PALM DESERT STANDARD FORM FAITHFUL PERFORMANCE BOND NAME OF DEVELOPMENT: C HAS E BANK NAME OF DEVELOPER:111 MONTEREY PALM LLC NAME OF SURETY: SURETEC INSURANCE COMPANY EFFECTIVE DATE: A P R I L 1612019 AMOUNT OF BOND: $45, 728.1 0 BOND NUMBER: 4424748 PREMIUM: $ 1 ,143 KNOW ALL MEN BY THESE PRESENTS: That the person, firm, corporation, entity, or otherwise, named on Line 2 above, without regard to gender and number, hereinafter referred to as PRINCIPAL, and the corporation named on Line 3 above, a corporation authorized to do business in the State of California and presently possessed of authority under Title 6 of the United States Code to do business under Sections 6 to 13 thereof, in the aggregate amounts hereof, hereinafter referred to as SURETY, are jointly and severally held and firmly bound unto the City of Palm Desert, a municipal corporation of the State of California, hereinafter referred to as CITY, in the sum mentioned on Line 6 above, for the faithful performance of that certain IMPROVEMENT AGREEMENT between PRINCIPAL and CITY regarding the subdivision named on Line 1 above, as required by the provisions of the Subdivision Map Act and CITY ordinances, resolutions, rules, and regulations, for the payment of which sums well and truly to be made, PRINCIPAL and SURETY hereby bind themselves, their heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents. THE CONDITION of the foregoing obligation is such that if the said PRINCIPAL shall faithfully perform the covenants, conditions, and agreements contained in that certain IMPROVEMENT AGREEMENT between PRINCIPAL and CITY regarding the development named on Line 1 of Page 1 hereof, which said agreement is by this reference incorporated herein, on its part to be kept and performed, in a manner and form therein specified, and shall furnish material in compliance with the specifications and perform all that certain work and improvement in said CITY which is more particularly described in said IMPROVEMENT AGREEMENT, then the obligation with respect to the faithful performance of said IMPROVEMENT AGREEMENT shall be void, otherwise to remain in full force and effect. The said SURETY, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the IMPROVEMENT AGREEMENT or to the work to be performed thereunder or the specifications accompanying the same shall in anywise affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the IMPROVEMENT AGREEMENT, the work, the specifications or any feature or item of performance thereunder. In the event it becomes necessary for CITY to bring an action to enforce this bond, SURETY shall pay CITY'S reasonable attorney's fees and court costs in connection therewith. IN WITNESS WHEREOF, PRINCIPAL and SURETY have executed this instrument on the date mentioned on Line 4 of Page 1 hereof. PRINCIPAL'S SIGNATURE ROBERT M. JONAS PRINT NAME MANAGER, 111 MONTEREY PALM LLC TITLE & COMPANY NAME IDS, L/^�� PRINCIPAL'S SIGNATURE DAN ALMQU I ST PRINT NAME MANAGER, 111 MONTEREY PALM LLC TITLE & COMPANY NAME SURETEC INSURANCE COMPANY SURETY' SPENCER FLAKE PRINT NAME ATTORNEY -IN -FACT TITLE (Notarial acknowledgment of execution by ALL PRINCIPALS and SURETY must be attached. ACKNOWLEDGEMENT A notary public or other officer completing 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 } } ss. County of )isss s } On V� , 20 \ 9 , before me, ms i , a Notary Public, personally appeared s- s u4A Gk cv, , who proved to me on the basis of satisfactory idence to be the person s) whose name's)teinature(s) subscribed to the within in ument and acknowledged to me that W hcuted the same in hWh h authorized capacity(ies), and that by on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. akk `eMy MARY W. CARNES Notary Public • CaliforniaI z Signature rY��c, �®¢ =Los Angeles County Commission k 2267227 Comm. Expires Dec 13, 2022 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing 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 4/ 16/ 19 before me, Erin A. Sherwood Notary Public, Date Insert Name of Notary exactly as it appears on the official seal personally appeared Spencer Flake Name(s) of Signer(s) �OOD `Commission ERIN A. SHERW616 .'.• # 2118628 L _ Notary Public - California _. "_,. zz '�`:;a� a Orange Cow;ty My Comm. Expires Jul 6, 2019 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Signature Sign of Notary Public rin erwoo OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of the form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer—Title(s):_ ❑ Partner ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: Top of thumb here Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer —Title(s): _ ❑ Partner ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: P0A #: 510123 SureTec Insurance Company LIMITED POWER OF ATTORNEY Know AU Men by These Presents, That SURETEC INSURANCE COMPANY (the "Company"), a corporation duly organized and existing under the laws of the State of Texas, and having its principal office in Houston, Harris County, Texas, does by these presents make, constitute and appoint Charles L. Flake, David L. Culbertson, Spencer Flake, Heather Willis its true and lawful Attorney -in -fact, with full power and authority hereby conferred in its name, place and stead, to execute, acknowledge and deliver any and all bonds, recognizances, undertakings or other instruments or contracts of suretyship to include waivers to the conditions of contracts and consents of surety for, providing the bond penalty does not exceed Ten Million and 00/100 Dollars ($10,000,000.00) and to bind the Company thereby as fully and to the same extent as if such bond were signed by the CEO, sealed with the corporate seal of the Company and duly attested by its Secretary, hereby ratifying and confirming all that the said Attorney -in -Fact may do in the premises. Said appointment is made under and by authority of the following resolutions of the Board of Directors of the SureTec Insurance Company: Be it Resolved, that the President, any Vice -President, any Assistant Vice -President, any Secretary or any Assistant Secretary shall be and is hereby vested with full power and authority to appoint any one or more suitable persons as Attomey(s)-in-Fact to represent and act for and on behalf of the Company subject to the following provisions: Attorney -in -Fact may be given full power and authority for and in the name of and of behalf of the Company, to execute, acknowledge and deliver, any and all bonds, recognizances, contracts, agreements or indemnity and other conditional or obligatory undertakings and any and all notices and documents canceling or terminating the Company's liability thereunder, and any such instruments so executed by any such Attorney -in -Fact shall be binding upon the Company as if signed by the President and sealed and effected by the Corporate Secretary. Be it Resolved, that the signature of any authorized officer and seal of the Company heretofore or hereafter affixed to any power of attorney or any certificate relating thereto by facsimile, and any power of attorney or certificate bearing facsimile signature or facsimile seal shall be valid and binding upon the Company with respect to any bond or undertaking to which it is attached. (Adopted at a meeting held on 20* of April, 1999.) In Witness Whereof, SURETEC INSURANCE COMPANY has caused these presents to be signed by its CEO, and its corporate seal to be hereto affixed this 28th day of September , A.D. 2018 . W SURETECNC 777,111 PANY XA %. By: u, s w 2 John Jr., C 7 State of Texas ss: 7� ; 1 County of Harris •• On this 28th day of September , A.D. 2018 before me personally came John Knox Jr., to me known, who, being by me duly sworn, did depose and say, that he resides in Houston, Texas, that he is CEO of SURETEC INSURANCE COMPANY, the company described in and which executed the above instrument; that he knows the seal of said Company; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said Company; and that he signed his name thereto by like order. r „ntary PwD ii ��1 a€ TexaSj v9-tfi-7.02'3 tT Notary iW 1291117659 Xei ' avez, Notary Public JW commission expires September l , 2020 I, M. Brent Beaty, Assistant Secretary of SURETEC INSURANCE COMPANY, do hereby certify that the above and foregoing is a true and correct copy of a Power of Attorney, executed by said Company, which is still in full force and effect; and furthermore, the resolutions of the Board of Directors, set out in the Power of Attorney are in full force and effect. Given under my hand and the seal of said Company at Houston, Texas this 16TH day of APRIL 2019 , A.D. Br t Assi eaty, tant Secret& Any instrument issued in excess of the penalty stated above is totally void and without any validity. For verification of the authority of this power you may call (713) 812-0800 any business day between 8:30 am and 5:00 pm CST. CITY OF PALM DESERT STANDARD FORM PAYMENT BOND (LABOR & MATERIALS) NAME OF PROJECT: CHASE BANK NAME OF DEVELOPER: 111 MONTEREY PALM LLC NAME OF SURETY: SURETEC INSURANCE COMPANY EFFECTIVE DATE: APRI L 16, 2019 AMOUNT OF BOND: 'P22,864.05 BOND NUMBER: 4424748 PREMIUM: Included in Performance Bond KNOW ALL MEN BY THESE PRESENTS: That the person, firm, corporation, entity, or otherwise, named on Line 2 of Page 1 hereof without regard to gender and number, hereinafter referred to as PRINCIPAL; and the corporation named on Line 3 of Page 1 hereof, a corporation authorized to do business in the State of California and presently possessed of authority under Title 6 of the United States Code to do business under Section 6 to 13 thereof in the aggregate amounts hereof, hereinafter referred to as SURETY; are jointly and severely held and firmly bound unto and all materialmen, persons, companies or corporations furnishing materials, provisions, provender or other supplies used, in, upon, for or about the performance of the work contracted to be executed or performed under the terms of that certain IMPROVEMENT AGREEMENT hereinafter mentioned and all persons, companies or corporations renting or hiring teams or implements, or machinery, for contributing to said work to be done, all persons who performed work or labor upon the same, and all persons who supply both work and materials, and whose claim has not been paid by PRINCIPAL in the just and full sum mentioned on Line 5 of Page 1 hereof for the payment whereof, well and truly to be made, said PRINCIPAL and SURETY bind themselves, their heirs, administrators, successors and assigns, jointly and severally, firmly by these presents. THE CONDITION OF THE OBLIGATION is such that whereas the above - bounden PRINCIPAL has entered into an IMPROVEMENT AGREEMENT with the City of Palm Desert, a municipal corporation of the State of California, hereinafter referred to as CITY, for the construction of public improvements in the project named on Line 1 of Page 1 hereof, which said IMPROVEMENT AGREEMENT is by this reference incorporated herein: NOW, THEREFORE, if the above -bounden PRINCIPAL, contractor, person, company or corporation, or his or its subcontractor, or subcontractors, fails to pay for any materials, provisions, provender, or the supplies, or teams used in, upon, for, or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to such work for labor, SURETY on this bond will pay the same, in an amount not exceeding the sum specified in this bond, and also, in case suit is brought on this bond, a reasonable attorney's fee which shall be awarded by the court to the prevailing party in said suit, said attorney's fee to be taxed as costs in said suit and to be included in the judgment therein rendered. This bond is executed and filed to comply with the provisions of all applicable CITY ordinances, resolutions, rules and regulations supplemental thereto; and all amendments thereto; and shall inure to the benefit of any and all materialmen, persons, companies or corporations entitled to file claims under and by virtue of the provisions thereof. IN WITNESS WHEREOF, PRINCIPAL AND SURETY have executed this instrument the date mentioned on Line 4 of Page 1 hereof. PRINCIPAL'S SIGNATURE SIGNATURE PRINCIPAL'S SIGNATIVIRE DAN ALMQUIST PRINT NAME ROBERT M. JONAS PRINT NAME MANAGER, 111 MONTEREY PALM LLC MANAGER, 111 MONTEREY PALM LLC TITLE & COMPANY NAME TITLE & COMPANY NAME SURETEC INSURANCE COMPANY SURETY S ETY'S SIGNATURE SPENCER FLAKE,ATTORNEY—IN—FACT PRINT NAME & TITLE (Notarial acknowledgement of execution by ALL PRINCIPALS and SURETY must be attached.) APPROVED AS TO FORM: ROBERT W. HARGREAVES, CITY ATTORNEY ACKNOWLEDGEMENT A notary public or other officer completing 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 } } ss. County of LEi, e-s } On , 20-\'3—, before me, '\ a Notary Public, personally appeared bes, Ct - , who proved to me on the basis of satisfactory eviiYence to be the persons) 4vhose name(s are ubscribed to the within instrument and acknowledged to me that /s_ the executed the same in fsk/46heir uthorized capacity(ies), and that by h)d/h,6their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. *My MARY W. CARNES Notary Public • California Los Angeles County 1riSignature �4sr��cCommission k 22b7227 Comm. Expires Dec 13, 2022 e: CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing 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 4/16/19 Date before me, Erin A. Sherwood Insert Name of Notary exactly as it appears on the official seal personally appeared Spencer Flake Name(s) of Signer(s) , Notary Public, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they ERIN A. SHERWOOD executed the same in his/her/their authorized capacity(ies), Commission # 211OD L and that by his/her/their signature(s) on the instrument the Z tij� ` Notary Public - California Z person(s), or the entity upon behalf of which the person(s) z Orange Coucty °' e D '�'�' acted, executed the instrument. My Comm. Expires Jul 6, 2019 I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and officiaZ;C,Zr� Signature ,C (,,c J Place Notary Seal Above Signatare of Notary Public Erin A. Sherwood OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of the form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer—Title(s):_ ❑ Partner ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: Top of thumb here Signer's Name: ❑ Individual ❑ Corporate Officer —Title(s): — ❑ Partner ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: POA #: 510123 SureTec Insurance Company LIMITED POWER OF ATTORNEY Know AU Men by These Presents, That SURETEC INSURANCE COMPANY (the "Company"), a corporation duly organized and existing under the laws of the State of Texas, and. having its principal office in Houston, Harris County, Texas, does by these presents make, constitute and appoint Charles L. Flake, David L. Culbertson, Spencer Flake, Heather Willis its true and lawful Attorney -in -fact, with full power and authority hereby conferred in its name, place and stead, to execute, acknowledge and deliver any and all bonds, recognizances, undertakings or other instruments or contracts of suretyship to include waivers to the conditions of contracts and consents of surety for, providing the bond penalty does not exceed Ten Million and 00/100 Dollars ($10,000,000.00) and to bind the Company thereby as fully and to the same extent as if such bond were signed by the CEO, sealed with the corporate seal of the Company and duly attested by its Secretary, hereby ratifying and confirming all that the said Attorney -in -Fact may do in the premises. Said appointment is made under and by authority of the following resolutions of the Board of Directors of the SureTec Insurance Company: Be it Resolved, that the President, any Vice -President, any Assistant Vice -President, any Secretary or any Assistant Secretary shall be and is hereby vested with full power and authority to appoint any one or more suitable persons as Attomey(s)-in-Fact to represent and act for and on behalf of the Company subject to the following provisions: Attorney -in -Fact may be given full power and authority for and in the name of and of behalf of the Company, to execute, acknowledge and deliver, any and all bonds, recognizances, contracts, agreements or indemnity and other conditional or obligatory undertakings and any and all notices and documents canceling or terminating the Company's liability thereunder, and any such instruments so executed by any such Attorney -in -Fact shall be binding upon the Company as if signed by the President and sealed and effected by the Corporate Secretary. Be it Resolved, that the signature of any authorized officer and seal of the Company heretofore or hereafter affixed to any power of attorney or any certificate relating thereto by facsimile, and any power of attorney or certificate bearing facsimile signature or facsimile seal shall be valid and binding upon the Company with respect to any bond or undertaking to which it is attached. (Adopted at a meeting held on 20'h of April, 1999.) In Witness Whereof, SURETEC INSURANCE COMPANY has caused these presents to be signed by its CEO, and its corporate seal to be hereto affixed this 28th day of September , A.D. 2018 . 1. JUKr;1 r;C;777 MYAPI Y �UaS XA 9�0 By. State of Texas ss: W John K Jr., C ,� � •. 1 County of Harris On this 28th day of September , A.D. 2018 before me personally came John Knox Jr., to me known, who, being by me duly sworn, did depose and say, that he resides in Houston, Texas, that he is CEO of SURETEC INSURANCE COMPANY, the company described in and which executed the above instrument; that he knows the seal. of said Company; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said Company; and that he signed his name thereto by like order. t-�,~ r otary P,blit a 3tea of feX,95 0 o 20�L iD 129117659 Xe avez, Notary Public JW commission expires September 1 , 2020 I, M. Brent Beaty, Assistant Secretary of SURETEC INSURANCE COMPANY, do hereby certify that the above and foregoing is a true and correct copy of a Power of Attorney, executed by said Company, which is still in full force and effect; and furthermore, the resolutions of the Board of Directors, set out in the Power of Attorney are in full force and effect. Given under my hand and the seal of said Company at Houston, Texas this 16TH day of APRIL , 201 , A.D. 9V BreCt4fleaty, Assi tent Secrete Any instrument issued in excess of the penalty stated above is totally void and without any validity. For verification of the authority of this power you may call (713) 812-0800 any business day between 8:30 am and 5:00 pm CST.