HomeMy WebLinkAboutRelease - Spanish Walk Bike Path 1\J
CITY OF PALM DESERT
PUBLIC WORKS DEPARTMENT
STAFF REPORT
REQUEST: RELEASE BONDS FOR SPANISH WALK BIKE PATH
SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works
APPLICANT: DR Horton
Attention: Jennifer O'Leary
2280 Wardlow Circle, Ste. 100
Corona, CA 92880
Willis of Florida, Inc.
4211 W. Boy Scout Blvd., Ste. 1000
Tampa, FL 33607
BOND NO.: 800002362
DATE: May 25, 2017
CONTENTS: Agreement
Bonds
Vicinity Map
Recommendation
By Minute Motion, release the Bonds for the Spanish Walk bike path.
Strategic Plan Objective
This action has no impact on the Strategic Plan.
Background
Spanish Walk is a multi-phased residential project located at Gerald Ford Drive and
Frank Sinatra Drive. A Faithful Performance Bond in the amount of $500,000, and a
Labor and Materials Bond in the amount of $250,000 were submitted to the Public
Works Department for bike path improvements in the project that were meant to
connect to a citywide bike path.
Staff Report
Release the Bonds for the Spanish Walk Bike Path
April 13, 2017
Page 2 of 2
After discussion by the City Council, the City has decided not to continue with the bike
path project. Therefore, Staff recommends that City Council authorize the release of the
Faithful Performance Bond and Labor and Materials Bond for bike path improvements
to Spanish Walk.
Fiscal Analysis
There is no fiscal impact associated with this action.
Prepared By: Depa e t ad:
Christina Canales, Assistant Engineer Mar Gr a ood, P.E.,
Director f ublic Works
- 4/te.,,L -4;c1i79
Cle._ _c_e_
J M. Moore, Director of Finance
Approval:
-Lauri Aylaian, City Manager
SUBDIVISION IMPROVEMENT AGREEMENT
DATE OF AGREEMENT: O(11L, r 1`f , 20 f C
NAME OF SUBDIVIDER: j),R. won Los r frs (foWvi€ Oeiyip4riv(referredJ
to as"SUBDIVIDER").
NAME OF SUBDIVISION: 94Yi isIUJ(U K No.of Lots: aid"'
(referred to as
"SUBDIVISION").
TENTATIVE MAP RESOLUTION OF APPROVAL NO.: Oc IO (TM No:'?
(referred to as"Resolution of Approval")
IMPROVEMENT PLANS APPROVED ON: ill j71--FvIi/y, eir6 -Ptir
(referred to as
"Improvement Plans").
ESTIMATED TOTAL COST OF IMPROVEMENTS:$ IOI OOO
ESTIMATED TOTAL COST OF MONUMENTATION:
SURETY:BOND NOS: C�r7DO), CA
SURETY: (111`7C• taffy I n5a vw ("n-pant
-OR-
IRREVOCABLE STAND-BY LETTER OF CREDIT NO.
FINANCIAL INSTITUTION:
-OR-
CASH/CERTIFICATE OF DEPOSIT, AGREEMENT DATED:
FINANCIAL INSTITUTION:
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
SUBDIVIDER.
RECITALS
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A. SUBDIVIDER has presented to CITY for approval and recordation, a final
subdivision map of a proposed SUBDIVISION pursuant to provisions of the
Subdivision Map Act of the State of California and the CITY's ordinances and
regulations relating to the filing, approval and recordation of subdivision maps.
The Subdivision Map Act and the CITY's ordinances and regulations relating to
the filing, approval and recordation of subdivision maps are collectively referred
to in this Agreement as the "Subdivision Laws".
B. A tentative map of the SUBDIVISION has been approved, subject to the
Subdivision Laws and to the requirements and conditions contained in the
Resolution of Approval. The Resolution of Approval is on file in the Office of the
City Clerk and is incorporated into this Agreement by reference.
C. The Subdivision Laws establish as a condition precedent to the approval of a
final map that SUBDIVIDER must have complied with the Resolution of Approval
and must have either (a) completed, in compliance with CITY standards, all of
the improvements and land development work required by the Subdivision Laws
or the Resolution of Approval or(b) have entered into a secured agreement with
CITY to complete the improvements and land development within a period of
time specified by CITY.
D. In consideration of the approval of a final map for the SUBDIVISION by the
City Council, SUBDIVIDER desires to enter into this Agreement, whereby
SUBDIVIDER promises to install and complete, at SUBDIVIDER's own expense,
all the public improvement work required by CITY in connection with the
proposed SUBDIVISION. SUBDIVIDER has secured this Agreement by
improvement security required by the Subdivision Laws and approved by the City
Attorney.
E. Complete Improvement Plans for the construction, installation, and completion of
the improvements have been prepared by SUBDIVIDER and approved by the
City Engineer. The Improvement Plans numbered as referenced previously in
this Agreement ace on file in the Office of the City Engineer and are incorporated
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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.
F. 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 Page 1 of this Agreement.
The basis for the estimate is attached as Exhibit"A" to this Agreement.
G. 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.
H. All public improvement monuments, street signs, and stakes as specified on the
final map are to be completed prior to final formal acceptance by the City
Council. Individual property monuments must be installed within one year from
the formal final Council acceptance of said SUBDIVISION.
SUBDIVIDER recognizes that by approval of the final map for SUBDIVISION,
CITY has conferred substantial rights upon SUBDIVIDER, including the right to
sell, lease, or finance lots within the SUBDIVISION. As a result, CITY will be
damaged to the extent of the cost of installation of the improvements by
SUBDIVIDER's failure to perform its obligations to commence construction of the
improvements by the time established in this Agreement. CITY shall be entitled to all
remedies available to it pursuant to this Agreement and law in the event of a
default by SUBDIVIDER. It is specifically recognized that the determination of
whether a reversion to acreage or rescission of the SUBDIVISION constitutes an
adequate remedy for default by the SUBDIVIDER shall be within the sole
discretion of CITY.
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NOW,THEREFORE, in consideration of the approval and recordation by the City
Council of the final map of the SUBDIVISION, SUBDIVIDER and CITY agree as follows:
1. SUBDIVIDER's Obligation to Construct Improvements.
SUBDIVIDER shall:
a. Comply with all the requirements of the Resolution of Approval, and
any amendments thereto, and with the provisions of the Subdivision
Laws.
b. Complete at SUBDIVIDER'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; provided however, that
the improvements shall not be deemed to be completed until
accepted by City Council as provided in Section (17) herein.
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 SUBDIVIDER'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 SUBDIVIDER and CITY.
SUBDIVIDER shall also be responsible for obtaining any public or
private sanitary sewer, domestic water, drainage, and/or utility
easements or authorization to accommodate the SUBDIVISION.
e. Commence construction of the improvements by the time
established in Section (22) of this Agreement and complete the
improvements by the deadline stated in Section (1)(b) above,
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unless a time extension is granted by the CITY as authorized in
Section (22).
f. Install all SUBDIVISION public improvement monuments required
by law and prior to formal final acceptance of the public
improvements by CITY. Individual property monuments shall be
installed within one year of said acceptance.
g. Install street name signs conforming to CITY standards. Permanent
street name signs shall be installed before acceptance of the
improvements by CITY.
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
SUBDIVIDER, 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.
SUBDIVIDER 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 SUBDIVIDER.
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3. Security. SUBDIVIDER shall at all times guarantee SUBDIVIDER's
performance by furnishing to CITY, and maintaining, good and sufficient
security as required by the Subdivision Laws 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
c. to guarantee or warranty the work done pursuant to this Agreement
for a period of one year following acceptance thereof by CITY
against any defective work or labor done or defective materials
furnished in the additional amount of 10% of the estimated cost of
the improvements; and
d. SUBDIVIDER shall also furnish to CITY good and sufficient security
in the amount of one hundred percent(100%) of the estimated cost
of setting SUBDIVISION monuments as stated previously in this
Agreement in Section (1)(f) for a period of one year plus thirty (30)
days from formal acceptance by the City Council.
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 shalt 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
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and incorporated into this Agreement Upon provision of a replacement security with the City
Engineer and firing 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
SUBDIVIDER, shall not relieve the improvement security given for
faithful performance of this Agreement. In the event such changes,
alterations, or additions exceed 10% of the original estimated cost
of the improvement, SUBDIVIDER 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 SUBDIVIDER 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 SUBDIVISION 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
SUBDIVIDER 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. SUBDIVIDER 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
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the work, SUBDIVIDER 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 by the City Council 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 SUBDIVIDER's
readiness for such inspection and SUBDIVIDER shall not proceed with additional
work until the inspection has been made and the work approved.SUBDIVIDER
shall bear all costs of inspection and certification. No improvements shall be
deemed completed until accepted by the City Council pursuant to Section
(17) 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 SUBDIVIDER; 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
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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 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. No security given for the guarantee or warranty of work shall be
released until the expiration of the warranty period and until any
claims filed during the warranty period have been settled.As provided
in Section (10), the warranty period shall not commence until formal feral
acceptance of all the work and improvements by the City Council.
e. 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.
SUBDIVIDER shall replace or repair or have replaced or repaired, as the
case may be, all public improvements, public utilities facilities and
surveying or subdivision monument which are destroyed or damaged as a
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result of any work under this Agreement. SUBDIVIDER 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.
B. Permits. SUBDIVIDER shall, at SUBDIVIDER's expense, obtain all
necessary permits and licenses for the construction and installation of the
improvements, give ail necessary notices and pay all fees and taxes
required by law.
9. Default of SUBDIVIDER.
a. Default of SUBDIVIDER shall include, but not be limited to,
(1) SUBDIVIDER's failure to timely commence construction of
this Agreement;
(2) SUBDIVIDER's failure to timely complete construction of the
improvements;
(3) SUBDIVIDER's failure to timely cure any defect in the
improvements;
(4) SUBDIVIDER's failure to perform substantial construction
work for a period of twenty (20) calendar days after
commencement of the work;
(5) SUBDIVIDER's insolvency, appointment of a receiver, or the
filing of any petition in bankruptcy either voluntary or
involuntary which SUBDIVIDER fails to discharge within
thirty (30) days; the commencement of a foreclosure action
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against the SUBDIVISION or a portion thereof, or any
conveyance in lieu or in avoidance of foreclosure; or
(6) SUBDIVIDER'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 SUBDIVIDER'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 SUBDIVIDER. 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
SUBDIVIDER'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.
In the event of SUBDIVIDER's default under this Agreement,
SUBDIVIDER authorizes CITY to perform such obligation twenty (20) days after
mailing written notice of default to SUBDIVIDER and to SUBDIVIDER'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 SUBDIVIDER, and SUBDIVIDER'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 SUBDIVIDER as may be on the site of the work and necessary for
performance of the work.
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c. Failure of SUBDIVIDER to comply with the terms of this Agreement
shall constitute consent to the filing by CITY of notice of violation
against all the lots in the SUBDIVISION, or to rescind the approval
or otherwise revert the SUBDIVISION to acreage. The remedy
provided by this subsection (c) is in addition to and not in lieu of other
remedies available to CITY. SUBDIVIDER agrees that the choice of
remedy or remedies for SUBDIVIDER's breach shall be in the
discretion of CITY.
d. In the event that SUBDIVIDER fails to perform any obligation
hereunder, SUBDIVIDER 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.
e. 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
SUBDIVIDER.
10. Warranty. SUBDIVIDER shall guarantee or warranty the work done
pursuant to this Agreement for a period of one year after final formal
acceptance of the SUBDIVISION 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 SUBDIVIDER fails to fulfill any of
the requirements of this Agreement or the improvement plans and
specifications referred to herein, SUBDIVIDER 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 structure. Should
SUBDIVIDER fail to act promptly or in accordance with this requirement,
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SUBDIVIDER hereby authorizes CITY, at CITY's option, to perform the
work twenty (20) days after mailing written notice of default to
SUBDIVIDER and to SUBDIVIDER'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 SUBDIVIDER can be notified,
CITY may, in its sole discretion, make the necessary repairs or
replacement or perform the necessary work and SUBDIVIDER shall pay to
CITY the cost of such repairs.
11. SUBDIVIDER Not Agent of CITY. Neither SUBDIVIDER nor any of
SUBDIVIDER's agents, contractors or subcontractors are or shall be
considered to be agents of CITY in connection with the performance of
SUBDIVIDER'S obligations under this Agreement.
12. Iniury to Work. Until such time as the improvements are accepted by
CITY, SUBDIVIDER 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, SUBDIVIDER 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 SUBDIVIDER.
13. Environmental Warranty. Prior to the acceptance of any dedications or
improvements by CITY, SUBDIVIDER shall certify and warrant that neither
the property to be dedicated nor SUBDIVIDER is in violation of any
environmental law and neither the property to be dedicated nor the
SUBDIVIDER is subject to any existing, pending or threatened
investigation by any federal, state or local governmental authority under or
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in connection with environmental law. Neither SUBDIVIDER 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. SUBDIVIDER 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. SUBDIVIDER'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. SUBDIVIDER
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 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. SUBDIVIDER'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 subdividers for the apportionment of costs of water and sewer
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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. SUBDIVIDER'S Obligation to Warn Public During Construction. Until
formal final acceptance of the improvements, SUBDIVIDER 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.
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 SUBDIVIDER, its agents, or employees,
contractors and subcontractors in the performance of this Agreement.
SUBDIVIDER 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 SUBDIVIDER, its agents, employees, contractors and
subcontractors in the performance of this Agreement, except for such
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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 SUBDIVISION, 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 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 SUBDIVIDER 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 SUBDIVIDER shall remain
obligated to eliminate any defect in design or dangerous condition caused by the
design or construction defect; however, SUBDIVIDER 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 SUBDIVIDER 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
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inspecting any work or construction. The improvement security shall not be
required to cover the provisions of this Section.
SUBDIVIDER 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 SUBDIVIDER'S Obligations. All of SUBDIVIDER's
obligations under this agreement are and shall remain the personal
obligations of SUBDIVIDER notwithstanding a transfer of all or any part of
the property within the SUBDIVISION subject to this Agreement, and
SUBDIVIDER shall not be entitled to assign its obligations under this
Agreement to any transferee of all or any part of the property within the
SUBDIVISION or to any other third party without the express written
consent of CITY.
20. Sale or Disposition of SUBDIVISION. Seller or other SUBDIVIDER may
request a novation of this Agreement and a substitution of security. Upon
approval of the novation and substitution of securities, the SUBDIVIDER
may request a release or reduction of the securities required by this
Agreement. Nothing in the novation shall relieve the SUBDIVIDER of the
obligations under Section (18) for the work or improvement done by
SUBDIVIDER.
21. Time of the Essence. Time is of the essence in the performance of this
Agreement.
22. Time for Commencement of Work; Time Extensions. SUBDIVIDER 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
72500.00001\57530992 - 17 -
4130t15
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 SUBDIVIDER'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
SUBDIVIDER 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 SUBDIVIDER could not
have reasonably foreseen and, furthermore, were not caused by or
contributed to by SUBDIVIDER, shall constitute good cause for and
extension of the time for completion. As a condition of such extension, the
City Engineer may require SUBDIVIDER 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 SUBDIVIDER of this Agreement
shall not be construed to vest SUBDIVIDER'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:
72500.00001'3753099.2 - 18 -
4+30i 15
Notice to CITY: City of Palm Desert
73-510 Fred Waring Drive Palm
Desert, California 92260 Attn: Public
Works Director
D.R, Horton
Notice to SUBDIVIDER: 2280 Wardlow Circle#100
Corona, CA 92880
Attn: Jennifer O'Leary
Willis of Florida
Notice to SURETY: 3000 Bayport Drive #300
Tampa, FL 33607
25. Compliance With Laws. SUBDIVIDER, 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. To the extent improvements to be constructed by
SUBDIVIDER or under the direction of SUBDIVIDER hereunder are
considered to be a public work requiring the payment of prevailing wages
and compliance with other prevailing wage laws under Labor Code
Sections 1720 et seq., SUBDIVIDER shall cause the contractor and
subcontractors to pay prevailing wages and to comply with all other
prevailing wage laws pursuant to California Labor Code Sections 1720 et
seq. and implementing regulations of the California Department of
Industrial Relations and comply with any other applicable provisions of
Labor Code Sections 1720 et seq. and implementing regulations of the
Department of Industrial Relations. SUBDIVIDER shall indemnify, defend,
protect and hold harmless City, its agents, elected officials, officers,
employees and independent consultants from and against any third party
claim, cause of action, administrative or judicial proceeding or
enforcement action of any kind arising out of or resulting from
SUBDIVIDER or its contractors and subcontractors' alleged or actual
failure to comply with prevailing wage law.
26. Severability. The provisions of this Agreement are severable. If any
72500 0000 R L5753099.2 - 19 -
4130i15
portion of this Agreement is held invalid by a court of competent
jurisdiction, the remainder of the agreement shall remain in fuN 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.
72500.00001'6753099 2 -20
IN WITNESS WHEREOF, this Agreement is executed by the parties as of the
date hereinabove first written; by CITY, by and through its Mayor.
D.R. Horton Los Angeles Holding
Company, Inc.
SUBDIVIDER CITY OF PALM DESERT
IVID�tv� -� By: S----- (Vt - w}--
SUEI ER MAYOR
(Proper Notarization of SUBDIVIDER's
signature is required and shall be attached)
ATTEST:
CI CL 'K
APPROVE S TO FORM:
C ATTOR EY
7250000001%5753099.2 -21 -
J30r 15
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 Plkti<idel }
On(e r (4( , 2 15 , before e, _,/'� Y� I C((e , a Notary Public,
P personally appeared 2i 1i . M. t1 tz i'{�1 1 , who proved to me on the
basis of satisfactory evidence to be the personN whose names.) is/a�e subscribed to the within
instrument and acknowledged to me that hgfshe/t ey executed the same in h1s,her/thb�r authorized
capacity(is), and that by 1is/her/th it signature(s.1 on the instrument the person , or the entity
upon behalf of which the person(skacted,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.
ANGELYN GUTIERREZ
Commission 12060404
1 4 :• �� Notary Public-Califon,
.�, 'V Riverside County
Signature Atedi M comm. e:mm 6 2 to
72500.000015753099.2 -22 -
430/1 5
EXTENSION RIDER
To be attached to and form part of Bond No. 800002362
Issued to (Principal): D.R. Horton Los Angeles Holding Company, Inc.
Type of Bond: Subdivision Faithful Performance
Development Name: Spanish Walk—Future Bike Path
dated the 22" day of August, 2013, and issued by Atlantic Specialty Insurance Company in
the penal sum of: Five Hundred Thousand and 00/100 Dollars ($500,000.00) and in favor of
City of Palm Desert.
In consideration of the agreed premium charged for this bond, it is understood and agreed that
Atlantic Specialty Insurance Company consents that effective the 3rd day of August, 2015 said
bond shall be amended as follows:
Extend the bond term to September 11, 2017
Provided, however that the attached bond remains subject to all its agreements, limitations and
conditions except herein expressly modified, and further that the liability of the Surety under the
attached bond and the bond as amended by this rider shall not be cumulative.
Signed,sealed and dated this 14'h day of October, 2015.
D.R. Horton Los Angeles Holding Company,Inc.
By: f161101atilkit44"-:
Atlantic Specialty Insurance Company
By: & r����
Marga t A. Ginem, Attorney-in-Fact
c/o Willis of Florida, Inc.
4211 W. Boy Scout Blvd., Ste. 1000
Tampa, FL 33607
Inquiries: (813)281-2095
ACKNOWLEDGEMENT BY SURETY
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH SS.
On this 14th day of October, 2015 before me, personally came
Margaret A. Ginem, who is personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person
who executed the within Instrument as Attorney-In-Fact on
behalf of Atlantic Specialty Insurance Company, and
acknowledged to me that he/she executed the within instrument
on behalf of said surety company and was duly authorized to
do.
In witness whereof, I have signed and affixed my official seal on
the date in this certificate first above written.
Signature .a. 614-'
Gloria Robb
+:5174, GLORIA RO.� i' BB
d.P Commission#FF 194062
Expires January 28,2019
This area for Official Notarial Seal
Senate Bill 1050, amends Sections 1189 and 1195 of the Civil Code and Section 8202 of the
Government Code, relating to notaries public. The below physical format of the new disclosure
notice is an example, for purposes of illustration.
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 Cal' ornia
County of Kl if I'SidC,
onNbKmker qidg,s before me, ARII`f Yt Otirit0—,Lakftittliv PP( t. (here
insert name and title of officer), personally appeared gi119Ar�.. . l (,14 Ka r , who
proved to me on the basis of satisfactory evidence to be the person) whose name6,l is/be subscribed to
the within instrument and acknowledged to me that 1ivishe/the`y executed the same in MG/her/their
authorized capacity, and that by b s/her/their signature on the instrument the person(}, or the
entity upon behalf of which the persons)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 m a ad ial seal.
Signature (Seal)
ANGELYN GUTIERREZ
. r•Cc ^ ss+on #2060404
4 Nc: tiic •California Z
z _
'e County —
j_ _ My Cc _zs Mar 8,2018 4
1 ,SANGELYNhTIERREZ
Commission#2060404
z Notary Public.California i
a. Riverside County
M Comm.E fires Mar 8.2018
(*re) .
One Beacon Power of Attorney
h tnSURAPICE GROUP
KNOW ALL MEN BY THESE PRESENTS.that ATLANTIC SPECIALTY INSURANCE COMPANY,a New York corporation with its principal office in Minnetonka,
Minnesota.does hereby constitute and appoint: Anett Cardinale,David H.Carr,Margaret A.Ginem,Eileen C.Heard,Brandy L.Batch,Robert H.Bond,each
individually if there be more than one named.its true and lawful Attorney-in-Fact.to make.execute,seat and deliver,for and on its behalf as surety,any and all bonds.
recognizances,contracts of indemnity,and all other writings obligatory in the nature thereof;provided that no bond or undertaking executed under this authority shall exceed in
amount die sum of:sixty million dollars(S60,000,000)and the execution of such bonds,recognizances,contracts of indemnity,and all other is ritings obligatory in the nature
thereof in pursuance of these presents,shall be as binding upon said Company as if they had been fully signed by an authorized officer of the Company and scaled with the
Company seal. This Power of Attorney is made and executed by authority of the following resolutions adopted by the Board of Directors of ATLANTIC SPECIALTY
INSURANCE COMPANY on the twenty-fifth day of September,2012:
Resolved: That the President,any Senior Vice President or Vice-President(each an"Authorized Officer")may execute for and in behalf of the Company any and
all bonds.recognizances,contracts of indemnity,and all other writings obligatory in the nature thereof,and affix the seal of the Company thereto;and that the
Authorized Officer may appoint and authorize an Attorney-in-Fact to execute on behalf of the Company any and all such instruments and to affix the Company
seal thereto;and that the Authorized Officer may at any time remove any such Altomcy--in-Fact and revoke alt power and authority given to any such Attorney-in.
Fact.
Resolved That tlx:Attorney-in-Fact may be given full power and authority to execute for and in the name and on behalf of the Company any and all bonds,
recognizances,contracts of indemnity,and all other writings obligatory in the nature thereof,and any such instnrment executed by any such Attorney-in-Fact shall
be as binding upon die Company as if signed and scaled by an Authorized Officer and,further,the Attorney-in-Fad is hereby authorized to verify any affidavit
required to be attached to bonds,
This power of attorney is signed and scaled by facsimile under the authority of the following Resolution adopted by the Board of Directors of ATLANTIC SPECIALTY
INSURANCE COMPANY on the twenty-fifth day of September.2012:
Resolved That the signature of an Authorized Officer,the signature of the Secretary or the Assistant Secretary.and the Company seal may be affixed by
facsimile to any power of attorney or to any certificate relating thereto appointing an Attorney.in•Fact for purposes only of executing and scaling any bond.
undertaking.recognizance or other written obligation in the nature thereof,and any such signature and seal where so tried,being hereby adopted by the Company
as the original signature of such officer and the original seal of the Company,lobe valid and binding upon the Company with the same force and effect as though
manually affixed.
IN Wf1 NESS WHEREOF,ATLANTIC SPECIALTY INSURANCE COMPANY has caused these presents to be signed by an Authorized Officer and the seal oldie Company
to be affixed this eighth day of December,2014.
+, ON IP!sqb
t
gt'\GpRPOR4,..:��;
t,. SEAL vi
= Aefili414-
i, 1986 03 By
47
STATE OF\1INNESOTA `s i. yEW Nos Paul J.Itrehm,Senior Vice President
IIENNIPEN COUNTY �'�<� z~ is...
On this eighth day of December,2014,before me personally came Paul J.Brehm,Senior Vice President of ATLANTIC SPECIALTY INSURANCE COMPANY.to me
personally known to he the individual and officer described in and who executed the preceding instrument.and he acknowledged the execution of the same,and being by hie
duty sworn,that he is the said officer of the Company aforesaid,and that the seal affixed to the preceding instrument is tx:seal of said Company and that the said seal and the
signature as such officer was duly affixed and
/a ^"o,, SA LESHA V. S. SEEKS
� Notary Public i J V. S.,l�>~c�_14-
`�r� : Stot�of Mian�sota
t,t ? My Commission Explr•i
Air January 31 , 2020 Notary Public
I,the undersigned.Assistant Secretary of ATLANTIC SPECIALTY INSURANCE COMP.\NY.a New York Corporation.do hereby certify that tlx:foregoing power of attorney
is in full force and has not been revoked,and the resolu ion set
forth above arc now in force.
Signed and sealed DatedJqr day of 0�: t/"T�,4906 rr„rrw
t/*l'i INBV9,,.
{Q o4G. •pSPPOgtrf"n,t
i 0 SEAL "
• r
Thhis Power of Attomcy expires 's-, :9BS o f , `"---C7-- 1-
October I.2017 ... 4�c:•Y_44 if
James G.Jordan.Assistant Secretary
EXTENSION RIDER
To be attached to and form part of Bond No. 800002362
Issued to (Principal): D.R. Horton Los Angeles Holding Company, Inc.
Type of Bond: Subdivision Payment Bond (Labor& Materials)
Development Name: Spanish Walk—Future Bike Path
dated the 22" day of August, 2013, and issued by Atlantic Specialty Insurance Company in
the penal sum of: Two Hundred Fifty Thousand and 00/100 Dollars (S250,000.00) and in
favor of City of Palm Desert.
In consideration of the agreed premium charged for this bond, it is understood and agreed that
Atlantic Specialty Insurance Company consents that effective the 3rd day of August,2015 said
bond shall be amended as follows:
Extend the bond term to September 11, 2017
Provided, however that the attached bond remains subject to all its agreements, limitations and
conditions except herein expressly modified, and further that the liability of the Surety under the
attached bond and the bond as amended by this rider shall not be cumulative.
Signed, sealed and dated this 14th day of October, 2015.
D.R. Horton Los AngelesWn/UA
Holding Company, Inc.
By: p,LY.Gt�4�v
Atlantic Specialty Insurance Company
By: 4 Q
Margar A. Ginem,Attorney-in-Fact
c/o Willis of Florida, Inc.
4211 W. Boy Scout Blvd., Ste. 1000
Tampa, FL 33607
Inquiries: (813)281-2095
Senate Bill 1050, amends Sections 1189 and 1195 of the Civil Code and Section 8202 of the
Government Code, relating to notaries public. The below physical format of the new disclosure
notice is an example, for purposes of illustration.
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 Cal' rnia
County of KitetSt J�ti
OnNQrt*r"[fclaIS before me, ArYihr Ci1*iffre2? O POte (here
insert name and title of officer),personallyappeared_ &61 L4 it) . gi KO! , who
PP J��sll�-� Y�
proved to me on the basis of satisfactory evidence to be the person s-whose names) ieb.re subscribed to
the within instrument and acknowle4ged to me that h/shelthey executed the same in her-A it
authorized capacity), and that by s/herftheir signatur'( ) on the instrument the person(, or the
entity upon behalf of w tieh 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 an o ' I seal.
Signature_ ___.____,___. (Seal)
7,• AkGEIYN GUTiERRFZ
.r ,. Commrssian 4 2060404
z ;� , Notary public-California i
,,,,se Riverside County '
M Comm.E tres afar 8,2018
ACKNOWLEDGEMENT BY SURETY
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH SS.
On this 14th day of October, 2015 before me, personally came
Margaret A. Ginem, who is personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person
who executed the within Instrument as Attorney-In-Fact on
behalf of Atlantic Specialty Insurance Company, and
acknowledged to me that he/she executed the within instrument
on behalf of said surety company and was duly authorized to
do.
In witness whereof, I have signed and affixed my official seal on
the date in this certificate first above written.
Signature AP:, 414--
Gloria Robb
risk GLORIA ROBE
L .i Commission#FF 194062
. Expires January 28,2019
'�4.w°Fr Bend 1Mu Tool Fro Mass.170.110-7010
This area for Official Notarial Sea!
_____
�tJ ,
One Beacon Power of Attorney
INSURANCE GROUP
KNOW ALL MEN BY THESE PRESENTS,that ATLANTIC SPECIALTY INSURANCE COMPANY,a New York corporation with its principal office in Minnetonka.
Minnesota,does hereby constitute and appoint: Anett Cardinale,David H.Carr,Margaret A.Ginent,Eileen C.Heard,Brandy L.Balch,Robert H.Bond.each
individually if there be more than one named,its true and lawful Anomey-in-Fact,to make,execute,seal and deliver,for and on its behalf as surety,any and all bonds,
recognizances,contracts of indemnity.and all other writings obligatory in the nature thereof;provided that no bond or undertaking executed under this authority shall exceed in
amount the sum of:sixty million dollars(560,000,000)and the execution of such bonds.recognizances,contracts of indemnity,and all other writings obligatory in the nature
thereof in pursuance of these presents.shall be as binding upon said Company as if they had been fully signed by an authorized officer of the Company and scaled with the
Company seal. This Power of Attorney is made and executed by authority of the following resolutions adopted by the Board of Directors of ATLANTIC SPECIALTY
INSURANCE COMPANY on the twenty-fifth day of September,2012:
Resolved: That the President,arty Senior Vice President or Vice-President(each an"Authorized Officer")may execute fur and in behalf of the Company any and
all bands,recognizances,contracts of indemnity,and all other writings obligatory is the nature thereof,and affix the seal of the Company thereto;and that the.
Authorized Officer may appoint and authorize an Attorney-in-Fact to execute on behalf of the Company any and all such instruments and to affix the Company
seal thereto;and that the Authorized Officer may at any time remove any such Attorney-in-Fact and revoke all power and authority given to any such Attorney-in-
Fact.
Resolved: That the Attorney-in-Fact may be given full power and authority to execute for and in the name and on behalf of the Company any and all bonds,
recognizances,contracts of indemnity,and all other writings obligatory in the nature thereof.and any such instrument executed by any such Attonicy-in-Fact shall
be as binding upon the Company as if signed and scaled by an Authorized Officer and,further,the Attorney-in-Fact is hereby authorized to verify any affidavit
required to he attached to bonds,
This power of attorney is signed and sealed by facsimile under the authority of the following Resolution adopted by the Board of Directors of ATLANTIC SPECIALTY
INSURANCE COMPANY on the twenty-fifth day of September.2012:
Resulted: That the signature of an Authorized Officer,the signature of die Secretary or the Assistant Secretary.and the Company seal may be affixed by
facsimile to any power of attorney or to any certificate relating!hereto appointing an Attorney-in-Fact for purposes only of executing and sealing any bond,
undertaking.recognizance or other written obligation in the nature thereof,and any such signature and seal where so used,being hereby adopted by the Company
as the original signature of such officer and the original seal of die Company.to be valid and binding upon the Company with the same force and effect as though
manually affixed.
IN WffNESS WHEREOF.ATLANTIC SPECIALTY INSURANCE COMPANY has caused these presents to be signed by an Authorized Officer and the seal of the Company
to he affixed this eighth day of December,2014.
"4-iv.INS`•4A
,4W GpFPOingle� �^n: /���
� SEAL
(31144#4 .
. 1986 ia f By
STATE OF MINNESOTA y- +'F iv'00- i+' Paul J.Brehm,Senior Vicc President
IlENNIPEN COUNTY '.--1 r.*^ l't."
On this eighth day of December.2014,before me personally came Paul I.Brehm,Senior Vice President of ATLANTIC SPECIALTY iNSURANCE.COMPANY,to me
personally known to be the individual and officer described in and who executed the preceding instrument,and he acknowledged to execution of the same.and being by me
duly sworn,that he is the said officer()idle Company aforesaid,and that the seal affixed to the preceding instrument is the seal of said Company and that the said seal and the
signature as such officer was duly affixed and
•
.-°rri :4E
4 ta
T�t _ My Commission Expires
• January 31 , 2020mamm. Notary Public
1.the undersigned.Assistant Secretary of ATLANTIC SPECIALTY INSURANCE COMPANY.a New York Corporation.do hereby certify that the foregoing power of attanhcy
is in full force and has not been revoked,and the resolutions set forth ahoy a arc now in force.
Signed and sealed. Dated ly day of�.W: e+ ,c2e2/5— M^
, ' IN 9
`v. -4.,,:
t44'4 trAPOR4ze 1,
°y SEAL r'
This Power of Attorney expires r'. 198bi 0�
October 1,2017 Z..,5, ''EA' ropes:'
c:)/c".'"--C2; 1.,c).C1 .---
James G.Jordan.Assistant Secretary
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GERALDORD DR — — JiiIh
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