HomeMy WebLinkAboutRelease Security - El Paseo Collection NorthX H
CITY OF PALM DESERT
PUBLIC WORKS DEPARTMENT
STAFF REPORT
REQUEST: RELEASE MAINTENANCE SECURITY FOR EL PASEO
COLLECTION NORTH
SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works
APPLICANT: El Paseo Collection North
73-061 El Paseo
Palm Desert, CA 92260
DATE: February 26, 2015
CONTENTS: Trust Deposit
Agreement
Vicinity Map
Recommendation
By Minute Motion, release maintenance security for improvements for El
Paseo Collection North.
Background
The subject property is located at 73-100 El Paseo on the north side of El Paseo
between Highway 74 and Sage Lane. A faithful performance bond was released in
February 2014. A cash bond in the amount of 10 percent of the faithful performance
bond was submitted for maintenance to be held for one year as required by the
municipal code.
All improvements related to this deposit are complete. Staff has recently re -inspected
the improvements to insure that they remain as they were when accepted at final
inspection.
The one-year maintenance period is now complete. Staff recommends that the City
Council authorize the release of the maintenance security.
Staff Report
Release Maintenance Security for El Paseo Collection North
Page 2 of 2
February 26, 2015
Fiscal Analysis
There is no fiscal impact associated with this action.
Prepared By: r ✓ Depa n Head:
Christina Canales, Assistant Engineer Mark G nwood, P.E.,
Directo f Public Works
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Paul S. Gibson, Director of Finance
n M. Wohlmuth, City Manager
CITY OF PALM DESERT
TREASURER'S RECEIPT FOR TRUST DEPOSIT
DATE ZA lAMOUNT
DEPOSITOR'S NAME E 1 �P2 't j eC- CU
REASON FOR DEPOSIT
3-161, E
RECEIVED BY C LZJ(`1LUt
ACCOUNT NUMBER (circle one):
610-0000-228-XX-00
01
Deposit in Lieu of Bond
1 I
Landscape & Lighting
24
Art Essay Contest
02
Monumentation
t3
Rent Review Commission
25
TUMF
03
Monterey 170
14
Candidates Deposit
34
Employee Donations
04
Grading Bond
15
Mitigation Fringe Lizard
39
PM 10 Deposit
0
Demolition Bond
16
Special Events
49
Athena Award
06
Faithful Performance Bond
17
Wine & Art Festival
5010
Community Walk
07
Misc. One -Time Deposit
21
Assessment Dist. Deposit
60
Planning Fee Deposit
08
Multi Species Mitigation
23
Median Const/Landscape
IS THE DEPOSIT REFUNDABLE? YES ✓ NO
CONDITIONS TO BE MET BEFORE REFUNDING DgOSTT?
------------------------------------
FINANCE DEPARTMENT USE ONLY
DATE REFUNDED CHECK NO, AMOUNT
NOTE. ATTACH TAPE SHOWING CALCULATION OF INTEREST EARNED, IF ANY.
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Notes
IMPROVEMENT AGREEMENT
DATE OF AGREEMENT: September 26, 2013.
NAME OF DEVELOPER: El Paseo Collection North, a California Limited
Partnership
(relerred to as "DEVELOPER").
NAME OF DEVELOPMENT: El Paseo Collection North
(referred to as "DEVELOPMENT").
DEVELOPMENT RESOLUTION OF APPROVAL NO.: Resolution N/A
(referred to as "Resolution of Approval")
IMPROVEMENT PLANS NO.: b - 130 l
(referred to as "Improvement Plans").
ESTIMATED TOTAL COST OF IMPROVEMENTS: $21,422.00
SURETY: Cash
LETTER OF CREDIT/BOND NOS.: N/A
This Agreement is made and entered into by and between the City of Palm Desert, a
municipal corporation of the State of California, hereinafter referred to as "CITY", and the
DEVELOPER.
99999.09999 57W340 t
RECITALS
A. DEVELOPER has presented to CITY for approval a Precise Grading Plan
pursuant to provisions of the CITY's ordinances and regulations relating to development
approval.
B. A Precise Grading Plan 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 Precise Grading Plan 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
Page l 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.
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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.
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.
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(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.
(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:
9"99.09999 5760340.1 4
(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
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
99999.09999 5760340.1 5
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 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.
99999.09999`5160340.1 6
(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
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.
99999.09999 5760340.1 7
(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 Proyerty 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;
(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;
99999.09999`5760340.1 8
(5) DEVELOPER's insolvency, appointment of a receiver, or the filing of any
petition in bankruptcy either voluntary or involuntary which DEVELOPER
fails to discharge within thirty (30) days;
(6) the commencement of a foreclosure action against the DEVELOPMENT or
a portion thereof, or any conveyance in lieu or in avoidance of foreclosure;
or
(7) DEVELOPER's failure to perform any other obligation under this
Agreement.
(b) CITY reserves to itself all remedies available to it at law or in equity for
breach of DEVELOPER's obligations under this Agreement. CITY shall have the
right, subject to this Section, to draw upon or utilize the appropriate security to
mitigate CITY's damages in event of default by DEVELOPER. The right of CITY
to draw upon or utilize the security is additional to and not in lieu of any other
remedy available to CITY. It is specifically recognized that the estimated costs and
security amounts may not reflect the actual cost of construction or installation of
the improvements and, therefore, CITY's damages for DEVELOPER's default
shall be measured by the cost of completing the required improvements. The sums
provided by the improvement security may be used by CITY for the completion of
the public improvements in accordance with the improvement plans and
specifications contained herein.
(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
99999.0999915760340.1 9
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.
(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
99999.099996760340.1 10
CITY in connection with the performance of DEVELOPER'S obligations under this
Agreement.
(11) iniury 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 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,
99999 09999.5760340.1
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
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,
99999.09999\5760340 1 12
(c) DEVELOPER's discovery of any occurrence or condition on any property
adjoining in the vicinity of the property to be dedicated that could cause the
property to be dedicated or any part thereof to be subject to any restrictions on its
ownership, occupancy, use for the purpose for which is it is intended, transferability
or suit under any environmental law.
(14) Other Agreements. Nothing contained in this Agreement shall preclude CITY from
expending monies pursuant to agreements concurrently or previously executed between the
parties, or from entering into agreements with other developers for the apportionment of costs
of water and sewer mains, or other improvements, pursuant to the provisions of the CITY
ordinances providing therefore, nor shall anything in this Agreement commit CITY to any such
apportionment.
(15) DEVELOPER'S Obligation to Warn Public During Construction. Until formal final
acceptance of the improvements, DEVELOPER shall give good and adequate warning to the
public of each and every dangerous condition existent in said improvements, and will take all
reasonable actions to protect the public from such dangerous condition.
(16) Vesting of Ownership- Upon formal final acceptance of the work by CITY and
recordation of the Resolution of Acceptance of Public Improvements, ownership of the
improvements constructed pursuant to this Agreement shall vest in CITY.
(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.
99999.09999\.5760340.1 13
(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 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
99999 09999\5760340.1 14
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
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
99999.09999\5760340.1 15
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
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.
99999 09999, 5760340.1 16
(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: El Paseo Collection North,
a California Limited Partnership
73-061 El Paseo Suite 200
Palm Desert, CA 92260
Notice to SURETY: N/A
(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.
99999.09999 5760340A 17
(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 terns of this Agreement shall be
in the County of Riverside, State of California.
99999.09999\5760340.1 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.
EL PASEO COLLECTION NORTH,
a California Limited Partnership
By: Chartwell Family Collection North, LLC,
CITY OF PALM DESERT
ATTEST
C CL RK }
APPROVED AS TO FORM:
CITY ATT NEY
99999.09999,5760340.1 19
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
1;Ot3 n
On �&~b,efz Z6, -2W before me, fA�lnvclR' Ann Auua' VI S r , Notary
Public, personally appeared heeA A _ Femrx , 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.
1 certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS m hand and official seal. PATRICIA ANN ALMOUIST
y Commission # 1967471
Le Notary Public - California
Los Angeles County
{
t�.. Comm. less Feb 22. 2016
Signature. (seal)
99999.099996760340 1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
Riverside
On October 8, 2013 before me, M. G. Sanchez, Notary Public
onto Here Insert Name and Tft of the Officer
personally appeared Jan C. Harnik -----------------------------------
Name(s) of Signer(s)
�M.GC. SANCHEZ
"Commission # 1906339 Z
a
llotary Public - California zRiverside County
My Comm. Expires Oct 29, 2011
Place Notary Seal Above
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/amx
subscribed to the within instrument and acknowledged
to me that kWsheAhey executed the same in
MB/herrlhettx authorized capacity0et* and that by
kis/herft signature(s) on the instrument the
person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand apd official seal.
Signature:
OPTIONAL
Though the information below is not required by law, it may prove valuable to I
and could prevent fraudulent removal and reattachment of this form
Description of Attached Document Improvement Agre4mdnt
Title or Type of Document: E1 Paseo Collection North C-1301
9 Document Date: September 26, 2013
fiSigner's) Other Than Named Above:
fi Capaclty(ies) Claimed by Signer(s)
t, Signer's Name: Jan C. Harnik
E i Corporate Officer — Title(s):
i Individual e
fi I : Partner — U Limited L) General Top of thumb here
0 Attorney in Fact
Trustee
i_ Guardian or Conservator
` ® Other: Mayor
Signer Is Representing:
City of Palm Desert
r
sons relying on the
another document.
Number of Pages:
Signer's Name:
❑ Corporate O cer — T iffe(s):
❑ Individual
0 Partner — ❑ Limi D GeneralrTopot7here
E] Attorney In Fact
F, Trustee
Guardian or Conservator
Other:
Signer Is Representing
=_L _J
0 2009 National Notary Association • NationatNotery org • 1-800-US NOTARY (1.800-876-6827) Item 05907