HomeMy WebLinkAbout11 Release Bond - Toscana Land LLCSTAFF REPORT
CITY OF PALM DESERT
PUBLIC WORKS
MEETING DATE: March 11, 2021
PREPARED BY: Christina Canales, Engineering Assistant
REQUEST: Accept median improvements for Hovley Lane East, reduce the
Faithful Performance Bond, and release the Labor and Materials
Bond for the Toscana Project
___________________________________________________________________________
Recommendation
By Minute Motion:
1. Accept improvements to Hovley Lane East;
2. Reduce the Faithful Performance Bond in the amount of $85,729.50; and
3. Release the Labor and Materials Bond in the amount of $47,627.50.
Strategic Plan
This action has no impact on the Strategic Plan.
Background Analysis
Toscana Country Club is residential subdivision located on south side of Hovley Lane
East between Via Vicchio and Via Sovana in Indian Wells. One of the entrances to the
country club is located of off Hovley Lane East in Palm Desert. In 2020, Toscana Country
Club posted a Faithful Performance Bond in the amount of $95,255.00 and a Labor and
Materials Bond in the amount of $47,627.50 in order to undertake median modifications
on Hovley Lane East.
Construction on the median is now complete. Per City Ordinance the City is required to
hold a 10% maintenance bond for one year after completion of improvements. The
developer, Toscana Land, LLC, has opted to reduce the amount of the Faithful
Performance Bond by $85,729.50 instead of submitting a separate maintenance bond. This
brings the amount of the Faithful Performance Bond to $9,525.50 to be held for one year for
maintenance.
March 11 , 2021 -Staff Report
Accept Median Improvements for Hovley Lane East , Reduce the Faithful Performance
Bond , and Release the Labor and Materials Bond for the Toscana Project
Page 2 of 2
Staff recommends that the City Council authorize the acceptance of off-site improvements
on Hovley Lane East , reduce the Faithful performance Bond by $85 ,729.50, and release
the Labor and Materials Bond in the amount of $47,627.50 .
Fiscal Analysis
There is no fiscal impact associated with this action.
LEGAL REVIEW DEPT . REVIEW FINANCIAL
REVIEW
N/A .'A.n ay J"ires t ine (j-t,,,,,.,e:;t 1'11. 1'1100,i,e,
Robert W . Hargreaves Andy Firestine Janet M. Moore City Attorney Assistant City Manager Director of Finance
City Manager Todd Hileman :
L. TOvlvl t--t ~Levvllil V\,
APPLICANT: Toscana Land , LLC
Attn: Phillip K . Smith , Jr., President
300 Eagle Dance Circle
Palm Desert , CA 92211
ATTACHMENTS: Vicinity Map
Bonds
Agreement
ASSISTANT
CITY MANAGER
.'A.n ay J"ires tine
Andy Firestine
Assistant City Manager
CITY COUNCIL Afl TION
APPROVED_.!L_ ____ DENTED-----
RECEIVED ______ OTHER------
~~i~;rf~ ~0Wn too i8~o/¥e tll/
ABSENT: N fil]!
ABSTAIN: NU ' /
VERIFIED BY: j l fZ( 6t:S
Original on File with City Clerk's Office
8/26/2020
8/31/2020
9/2/2020 E-997-1
[This page has intentionally been left blank.]
ALLAN LEVIN
ASSOCIATES
Transmittal
To: CITY OF PALM DESERT
Public Works Dept.
73-510 Fred Waring Drive, Palm Desert, CA 92260
Attn: _Christina Canales
Development & Construction Management
Date: August21, 2020
W.O.# 1001-8.01
Subject: TOSCANA COUNTRY CLUB: HOVLEY LANE EAST - IMPROVEMENT BONDS
Transmitted: (X ) Herewith ( ) Under Separate Cover
( ) # Sets
( )
Site Plan
( ) Copies
( ) Originals
( ) # Sets
( )
Grading Plan
( ) Copies
( ) Originals
( ) # Sets
( )
Sewer Plans
( ) Copies
( ) Originals
( ) # Sets
( )
Water Plans
( ) Copies
( ) Originals
( ) # Sets
( )
Tract Map
( ) Copies
( ) Originals
(1 ) # Sets
(X)
( ) Copies
( X) Originals
Attached are the
Performance
and Labor
& Materials Bonds for the street improvements
for Hovley Lane East in
conounction with
the Toscana
Country Club
Project to be used in isscing the
City Encroachment Permit,
Sent Via:
( ) Hand Delivery ( ) U.S. Mail
( ) Blue Print Co. ( ) UPS
( ) Other ( ) Federal Express
Signature: cc:
(N
( X) As Requested
( ) For Information Purposes
( ) For Approval
( ) For Processing & Return
76-768 Bishop Place 9 Palm Desert, CA 92211 • (760) 345-0058 Voice/FAX • e-mail: alamagic@earthlink.net
CITY OF PALM DESERT
STANDARD FORM
PAYMENT BOND
(LABOR & MATERIALS)
NAME OF PROJECT: Hovey Lane East Improvements: Fred Waring Drive, Palm Desert, CA92260
NAME OF DEVELOPER: Toscana Land, LLC
NAME OF SURETY: Harco National Insurance Company
EFFECTIVE DATE: 8/17/2020
AMOUNT OF BOND: $47,627.50
BOND NUMBER: 0765437
PREMIUM: $0.00
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.
f
PRINCIPAL' IGNATURE
PRINCIPAL'S SIGNATURE
.&� K---. sk"A, V".
PRINT NAM PRINT NAME
Toscana Land, LLC By: Sunrise Toscana G.P., LLC Its General Partner
TITLE & COMPANY NAME TITLE & COMPANY NAME
Harco National Insurance Company
SURETY'S SIGNATURE
suktlrrs SIGNATURE
Heather M. Valtier Attorney -in-Fact
(Notarial acknowledgement of execution by ALL PRINCIPALS and SURETY must be attached.)
APPROVED AS TO FORM:
ROBERT W. HARGREAVES, CITY ATTORNEY
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
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 Riverside
On August 20, 2020 before me, Juanita M.A. Gama, Notary Public
Date Here Insert Name and Title of the Officer
personally appeared Phillip K. Smith, Jr.
Cj.�
JUANITA M. A. GAMANotary Public • CaliforniaRiverside County
Commission # 2274610
i PF
My Comm. Expires Feb 7, 2023
Place Notary Seal Above
Name(s) of Signer(s)
who proved to me on the basis of satisfactory
evidence to be the personA whose name(s) is/
ar* subscribed to the within instrument and
acknowledged to me that hehshe/tllley executed
the same in his/la*r/t1 it authorized capacity
(io, and that by his/F,6r/tWir signature(4 on the
instrument the person(s), or the entity upon
behalf of which the person(#) 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:
(31 tQ -a Q�Y�� a,
Signature of Notary Public
OPTIONAL
Though the information below is not required bylaw, it may prove valuable to persons relying on the
document and could prevent fraudulent removal and reattachment of this form to another document.
Further Description of Any Attached Document
Title or Type of Document: City of Palm Desert, Standard Form, Payment Bond (Labor & Materials); Bond Amount $47,627.50
Bond No. 0765437, Effective Date 8/17/2020
Document Date: August 17, 2020
Signer(s) Other Than Named Above: n/a
Number of Pages: 4
STATE OF NEW JERSEY STATE OF ILLINOIS
County of Essex County of Cook
Kenneth Chapman
Executive Vice President, Harco National Insurance Company
and International Fidelity Insurance Company
POWER OF ATTORNEY Bond# 0765437
HARCO NATIONAL INSURANCE COMPANY
INTERNATIONAL FIDELITY INSURANCE COMPANY
Member companies of IAT Insurance Group, Headquartered: 702 Oberlin Road, Raleigh, North Carolina 27605
KNOW ALL MEN BY THESE PRESENTS: That HARCO NATIONAL INSURANCE COMPANY, a corporation organized and existing under the laws of
the State of Illinois, and INTERNATIONAL FIDELITY INSURANCE COMPANY, a corporation organized and existing under the laws of the State of New
Jersey, and having their principal offices located respectively in the cities of Rolling Meadows, Illinois and Newark, New Jersey, do hereby constitute and
appoint
SKYLAR ROMINES, MICHAEL J. PERRY, ROBERT RANALLO, SANDRA L. SIKORA, DANA
DOWERS, HEATHER M. VALTIER, RAY CHAO
Irvine, CA
their true and lawful attorneys) -in -fact to execute, seal and deliver for and on its behalf as surety, any and all bonds and undertakings, contracts of
indemnity and other writings obligatory in the nature thereof, which are or may be allowed, required or permitted by law, statute, rule, regulation, contract
or otherwise, and the execution of such instrument(s) in pursuance of these presents, shall be as binding upon the said HARCO NATIONAL
INSURANCE COMPANY and INTERNATIONAL FIDELITY INSURANCE COMPANY, as fully and amply, to all intents and purposes, as if the same had
been duly executed and acknowledged by their regularly elected officers at their principal offices.
This Power of Attorney is executed, and may be revoked, pursuant to and by authority of the By -Laws of HARCO NATIONAL INSURANCE COMPANY
and INTERNATIONAL FIDELITY INSURANCE COMPANY and is granted under and by authority of the following resolution adopted by the Board of
Directors of INTERNATIONAL FIDELITY INSURANCE COMPANY at a meeting duly held on the 13th day of December, 2018 and by the Board of
Directors of HARCO NATIONAL INSURANCE COMPANY at a meeting held on the 13th day of December, 2018.
"RESOLVED, that (1) the Chief Executive Officer, President, Executive Vice President, Senior Vice President, Vice President, or Secretary of the
Corporation shall have the power to appoint, and to revoke the appointments of, Attorneys -in -Fact or agents with power and authority as defined or limited
in their respective powers of attorney, and to execute on behalf of the Corporation and affix the Corporation's seal thereto, bonds, undertakings,
recognizances, contracts of indemnity and other written obligations in the nature thereof or related thereto; and (2) any such Officers of the Corporation
may appoint and revoke the appointments of joint -control custodians, agents for acceptance of process, and Attorneys -in -fact with authority to execute
waivers and consents on behalf of the Corporation; and (3) the signature of any such Officer of the Corporation and the Corporation's seal may be affixed
by facsimile to any power of attorney or certification given for the execution of any bond, undertaking, recognizance, contract of indemnity or other written
obligation in the nature thereof or related thereto, such signature and seals when so used whether heretofore or hereafter, being hereby adopted by the
Corporation as the original signature of such officer and the original seal of the Corporation, to be valid and binding upon the Corporation with the same
force and effect as though manually affixed."
IN WITNESS WHEREOF, HARCO NATIONAL INSURANCE COMPANY and INTERNATIONAL
FIDELITY INSURANCE COMPANY have each executed and attested these presents
on this 31st day of December, 2018 ",,,.,,,,,
.a? oppo�Qr do i
z: SEAS oc
-a, AgoNe
-
On this 31 st day of December, 2018 , before me came the individual who executed the preceding instrument, to me personally known, and,
being by me duly sworn, said he is the therein described and authorized officer of HARCO NATIONAL INSURANCE COMPANY and
INTERNATIONAL FIDELITY INSURANCE COMPANY; that the seals affixed to said instrument are the Corporate Seals of said Companies; that the
said Corporate Seals and his signature were duly affixed by order of the Boards of Directors of said Companies.
�,%%`111$181"1 , IN TESTIMONY WHEREOF, I have hereunto set my hand affixed my Official Seal, at the City of Newark,
E A. 0Gj11'. New Jersey the day and year first above written.
Q` EaROf
= y
_ a • �. V
s� y o s99�� ;: ` Q•
��'•;, w JERS".�`� Shirelle A. Outley a Notary Public of New Jersey
Ili II W, CERTIFICATION My Commission Expires April 4, 2023
I, the undersigned officer of HARCO NATIONAL INSURANCE COMPANY and INTERNATIONAL FIDELITY INSURANCE COMPANY do hereby certify
that I have compared the foregoing copy of the Power of Attorney and affidavit, and the copy of the Sections of the By -Laws of said Companies as set
forth in said Power of Attorney, with the originals on file in the home office of said companies, and that the same are correct transcripts thereof, and of the
whole of the said originals, and that the said Power of Attorney has not been revoked and is now in full force and effect.
IN TESTIMONY WHEREOF, I have hereunto set my hand on this day, July 10, 2020
A01718 The DLD Company dba D.L.D Insu
Irene Martins, Assistant Secretary
CALIFORNIA ALL-PURPOSE CERTIFICATE OF 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 $ /k before me, Megan Elizabeth Graham , Notary Public,
(Here insert name and title of the officer)
personally appeared Heather M. Valtier
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.
hand and
Signature of
(Notary Seal)
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
Z11-41bol- 0.i wf&'�LA j cV,4
(Title or description of attached document)
(Titfe—or description of attached document continued)
Number of Pages __�L Document Date
(Additional information)
CAPACITY CLAIMED BY THE SIGNER
❑ Individual (s)
❑ Corporate Officer
(Title)
❑ Partner(s)
-Attorney-in-Fact
❑ Trustee(s)
❑ Other
MEGAN ELIZABETH GRAHAM
Notary Public - California z
Orange County n
Commission # 2196497
My Comm. Expires May 11, 2021
INSTRUCTIONS FOR COMPLETING THIS FORM
Any acknowledgment completed in California must contain verbiage exactly as
appears above in the notary section or a separate acknowledgment form must he
properly completed and attached to that document. The only exception is if a
document is to be recorded outside of California. In such instances, anv alternative
acknowledgment verbiage as may be printed on such a document so long as the
verbiage does not require the notary to do something that it illegal for a notary in
California (i.e. certifying the authorized capacity of the signer). Please check the
document carefu/ly for proper notarial wording and attach this form if required.
• State and County information must be the State and County where the document
signer(s) personally appeared before the notary public for acknowledgment.
• Date of notarization must be the date that the signer(s) personally appeared which
must also be the same date the acknowledgment is completed.
• The notary public must print his or her name as it appears within his or her
commission followed by a comma and then your title (notary public).
• Print the name(s) of document signer(s) who personally appear at the time of
notarization.
• Indicate the correct singular or plural forms by crossing off incorrect forms (i.e.
he/she/dwy;- is /are ) or circling the correct forms. Failure to correctly indicate this
information may lead to rejection of document recording.
• The notary seal impression must be clear and photographically reproducible.
Impression must not cover text or lines. If seal impression smudges, re -seal if a
sufficient area permits, otherwise complete a different acknowledgment form.
• Signature of the notary public must match the signature on file with the office of
the county clerk.
Additional information is not required but could help to ensure this
acknowledgment is not misused or attached to a different document.
Indicate title or type of attached document, number of pages and date.
Indicate the capacity claimed by the signer. If the claimed capacity is a
corporate officer, indicate the title (i.e. CEO, CFO, Secretary).
• Securely attach this document to the signed document
C 2004-2015 Pro Link Signing Service, Inc. -All Rights Reserved www TheProLinkcom - Nationwide Notary Service
[This page has intentionally been left blank.]
CITY OF PALM DESERT
STANDARD FORM
FAITHFUL PERFORMANCE BOND
NAME OF DEVELOPMENT: Hovley Lane East Improvements: Fred Waring Drive, Palm Desert, CA9226
NAME OF DEVELOPER: Toscana Land LLC
NAME OF SURETY: Harco National Insurance Company
EFFECTIVE DATE: 8/17/2020
AMOUNT OF BOND: $95,255.00
BOND NUMBER: 0765437
PREMIUM: $ 1 , 737.00
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.
J I
PRINCIPAL' SIGNATURE
k, ltl V-..5ivuT.
PRINT NAME
Toscana Land, LLC
By: Sunrise Toscana G.P, LLC Its General Partner
TITLE & COMPANY NAME
PRINCIPAL'S SIGNATURE
PRINT NAME
TITLE & COMPANY NAME
Harco National Insurance
Company
SURETY'S SIGNATURE
BY: VSURETY'S SIGNATURE
Heather M. Valtier Attorney- in.Fact
(Notarial acknowledgment of execution by ALL PRINCIPALS and SURETY must
be attached.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
CIVIL CODE § 1189
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 Riverside
On August 20, 2020 before me,
Date
personally appeared Phillip K. Smith, Jr.
JUANITA M. A. GAMA
Notary Public - California z
Z . + Riverside County f
Commission # 2274E10
My Comm. Expires Feb 7, 2023
Place Notary Seal Above
Juanita M.A. Gama, Notary Public
Here Insert Name and Title of the Officer
Names) of Signer(s)
who proved to me on the basis of satisfactory
evidence to be the person() whose name(*) is/
aX subscribed to the within instrument and
acknowledged to me that he/sj;lle/jhey executed
the same in his/W/t�Oir authorized capacity
(ies), and that by his/VrAlWiir signature(jr) on the
instrument the person(/s), or the entity upon
behalf of which the personW acted, executed
the instrument
1 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:
Signature of Notary Public
OPTIONAL
Though the information below is not required bylaw, It may prove valuable to persons relying on the
document and could prevent fraudulent removal and reattachment of this form to another document.
Further Description of Any Attached Document
Title or Type of Document: City of Palm Desert, Standard Form, Faithful Performance Bond; Bond Amount $95,255.00
Bond No. 0765437, Effective Date 8/17/2020
Document Date: August 17, 2020
Signer(s) Other Than Named Above: n/a
Number of Pages: 4
POWER OF ATTORNEY Bond# 0765437
STATE OF NEW JERSEY STATE OF ILLINOIS
County of Essex County of Cook
4
Kenneth Chapman
Executive Vice President, Harco National Insurance Company
and International Fidelity Insurance Company
HARCO NATIONAL INSURANCE COMPANY
INTERNATIONAL FIDELITY INSURANCE COMPANY
Member companies of IAT Insurance Group, Headquartered: 702 Oberlin Road, Raleigh, North Carolina 27605
KNOW ALL MEN BY THESE PRESENTS: That HARCO NATIONAL INSURANCE COMPANY, a corporation organized and existing under the laws of
the State of Illinois, and INTERNATIONAL FIDELITY INSURANCE COMPANY, a corporation organized and existing under the laws of the State of New
Jersey, and having their principal offices located respectively in the cities of Rolling Meadows, Illinois and Newark, New Jersey, do hereby constitute and
appoint
SKYLAR ROMINES, MICHAEL J. PERRY, ROBERT RANALLO, SANDRA L. SIKORA, DANA
DOWERS, HEATHER M. VALTIER, RAY CHAO
Irvine, CA
their true and lawful attorney(s)-in-fact to execute, seal and deliver for and on its behalf as surety, any and all bonds and undertakings, contracts of
indemnity and other writings obligatory in the nature thereof, which are or may be allowed, required or permitted by law, statute, rule, regulation, contract
or otherwise, and the execution of such instrument(s) in pursuance of these presents, shall be as binding upon the said HARCO NATIONAL
INSURANCE COMPANY and INTERNATIONAL FIDELITY INSURANCE COMPANY, as fully and amply, to all intents and purposes, as if the same had
been duly executed and acknowledged by their regularly elected officers at their principal offices.
This Power of Attorney is executed, and may be revoked, pursuant to and by authority of the By -Laws of HARCO NATIONAL INSURANCE COMPANY
and INTERNATIONAL FIDELITY INSURANCE COMPANY and is granted under and by authority of the following resolution adopted by the Board of
Directors of INTERNATIONAL FIDELITY INSURANCE COMPANY at a meeting duly held on the 13th day of December, 2018 and by the Board of
Directors of HARCO NATIONAL INSURANCE COMPANY at a meeting held on the 13th day of December, 2018.
"RESOLVED, that (1) the Chief Executive Officer, President, Executive Vice President, Senior Vice President, Vice President, or Secretary of the
Corporation shall have the power to appoint, and to revoke the appointments of, Attorneys -in -Fact or agents with power and authority as defined or limited
in their respective powers of attorney, and to execute on behalf of the Corporation and affix the Corporation's seal thereto, bonds, undertakings,
recognizances, contracts of indemnity and other written obligations in the nature thereof or related thereto; and (2) any such Officers of the Corporation
may appoint and revoke the appointments of joint -control custodians, agents for acceptance of process, and Attorneys -in -fact with authority to execute
waivers and consents on behalf of the Corporation; and (3) the signature of any such Officer of the Corporation and the Corporation's seal may be affixed
by facsimile to any power of attorney or certification given for the execution of any bond, undertaking, recognizance, contract of indemnity or other written
obligation in the nature thereof or related thereto, such signature and seals when so used whether heretofore or hereafter, being hereby adopted by the
Corporation as the original signature of such officer and the original seal of the Corporation, to be valid and binding upon the Corporation with the same
force and effect as though manually affixed."
IN WITNESS WHEREOF, HARCO NATIONAL INSURANCE COMPANY and INTERNATIONAL
FIDELITY INSURANCE COMPANY have each executed and attested these presents
on this 31 st day of December, 2018 '„
1NSLrgq • ;•
O G�PVC�r •ram
SEAL `9:
.' 6k�1t944`as fib
On this 31 st day of December, 2018 , before me came the individual who executed the preceding instrument, to me personally known, and,
being by me duly sworn, said he is the therein described and authorized officer of HARCO NATIONAL INSURANCE COMPANY and
INTERNATIONAL FIDELITY INSURANCE COMPANY; that the seals affixed to said instrument are the Corporate Seals of said Companies; that the
said Corporate Seals and his signature were duly affixed by order of the Boards of Directors of said Companies.
IN TESTIMONY WHEREOF, I have hereunto set my hand affixed my Official Seal, at the City of Newark,
F. A: New Jersey the day and year first above written.
`Q Eaµ p�• !� �
.y ;•u° 7Agy c�•.tn.4
o�-
W JE0(:�'� Shirelle A. Outley a Notary Public of New Jersey
�'''s I I W"' CERTIFICATION My Commission Expires April 4, 2023
I, the undersigned officer of HARCO NATIONAL INSURANCE COMPANY and INTERNATIONAL FIDELITY INSURANCE COMPANY do hereby certify
that I have compared the foregoing copy of the Power of Attorney and affidavit, and the copy of the Sections of the By -Laws of said Companies as set
forth in said Power of Attorney, with the originals on file in the home office of said companies, and that the same are correct transcripts thereof, and of the
whole of the said originals, and that the said Power of Attorney has not been revoked and is now in full force and effect.
IN TESTIMONY WHEREOF, I have hereunto set my hand on this day, July 10, 2020
A01718 The DLD Company dba D.L.D Insu
Irene Martins, Assistant Secretary
CALIFORNIA ALL-PURPOSE CERTIFICATE OF 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 before me, Megan Elizabeth Graham , Notary Public,
(Here insert name and title of the officer)
personally appeared Heather M. Valtier
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.
MEGAN ELIZABETH GRAHAM
NotaryPublic- California
z
Orange County >
WIr ESSymyhand and 7c' 1 seal. Commission # 2196497
My Comm. Expires May 11, 2021
Signature
(Notary Seal)
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
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(Title)
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N/A
E-997
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
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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.
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9!12'17 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.
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9112/17 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
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9/12117 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
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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
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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.
(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;
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9/12/17 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;
97i
(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.
Re sed
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.
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9i 1297 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) Injury 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
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9/12117
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 Warranty. 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) VestinE 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.
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9/12117 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) Indemnity/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
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9/1v17 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 Obligations. 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
9112/17 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 Disposition 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
9/12/17 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 of Rights. 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
73-510 Fred Waring Drive Palm
Desert, California 92260
Attn: Public Works Director
Notice to DEVELOPER: Toscana Land, LLC
Attn: Phillip K. Smith, Jr., President
300 Eagle Dance Circle
Palm Desert, CA 92211
Notice to SURETY: Harco National Insurance Co.
702 Oberlin Road
Raleigh, North Carolina 27605
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9/12117 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) Captions. 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.
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9112117 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.
o Xe_11::;An 4, LLL. �-
43c7 CITY OF PALM DESERT
le -
DEVELOPERS
By:
DEVELOPER
(Proper Notarization of
DEVELOPER'S signature is
required and shall be attached)
LAURI AYLAIAN, CITY MANAGER
ATTEST
RACHELLE D. KLASSEN, CITY CLERK
APPROVED AS TO FORM:
ROBERT W. HARGREAVES, CITY ATTORNEY
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 )
J ) ss.
County of �; U t rS I'd C. )
On ,n bf, r 3 , 2020 ,before me,`} (jan i ja P1 A ' Gr a _Ma, , a Notary
Public, personally appeared P��� �1i"�i'1, J r . , who proved to
me on the basis of satisfactory evidence to be the personO whose name(s) is/a/e subscribed to
the within instrument and acknowledged to me that he/s,We/they executed the same in
his/hpi/thir authorized capacity(i/s), and that by his/hir/thdiir signature(d) on the instrument the
person($), or the entity upon behalf of which the persons j 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.
JUANITA M. A. GAhLq
Signature Q - Notary Public - California
Riverside County
Commisslon # 2274810
MY Comm. Expires Feb 7, 2023
Revised
9/12117 20