HomeMy WebLinkAboutRelease Security - Presage - Umbenhauer - Roemer - Harnikx�
CITY OF PALM DESERT
PUBLIC WORKS DEPARTMENT
STAFF REPORT
REQUEST: RELEASE SECURITY FOR THE PRESAGE PROJECT
SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works
APPLICANT: Richard A. Umbenhauer
Roemer & Harnik LLP
45-025 Manitou Drive
Indian Wells, CA 92210
DATE: June 11, 2015
CONTENTS: Trust Deposit
Agreement
Vicinity Map
Recommendation
By Minute Motion, release security for improvements for the Presage
project and accept a 10 percent maintenance bond.
Background
The subject property is located at 73-811 El Paseo on the south side of El Paseo
between San Luis Rey and Portola Avenue. Cash deposits of $28,698 for the Faithful
Performance Bond and $14,349 for the Labor and Materials Bond totaling $43,047 were
submitted at the time of permit issuance for off -site improvements to El Paseo.
All improvements related to this deposit are complete. A cash bond in the amount of 10
percent of the Faithful Performance Bond ($2,870) was submitted for maintenance to be
held for one year as required by the municipal code.
Staff recommends that the City Council authorize the release of the faithful performance
and labor and materials deposits and accept the cash deposit for maintenance for one
year.
Staff Report
Release Security for the Presage Project
Page 2of2
June 11, 2015
Fiscal Analysis
There is no fiscal impact associated with this action.
Prepared By:
Depa
Christina Canales, Assistant Engineer Mark Gr a ood, P. ,
Director f ublic Works
10 �, J
PaLYS. Gibson, Director of Finance
Jq# M. Wohlmuth, City Manager
• 5283
CITY OF PALM DESERT
TREASURER'S RECEIPT FOR TRUST DEPOSIT
DATE �J �I I AMOUNT L
DEPOSITOR'S NAME
REASON FOR DEPos r P&OchM Be
RECEIVED BY 0-C�:'1'`C`.�.E �--�
ACCOUNT NUMBER (circle one):
610-0000-228-XX-00
01
Deposit in Lieu of Bond
11
Landscape & Lighting
24
02
Monumentation
13
Rent Review Commission
25
03
Monterey 170
14
Candidates Deposit
34
04
Grading Bond
15
Mitigation Fringe Lizard
39
05
Demolition Bond
16
Special Events
49
06
Faithful Performance Bond
17
Wine & Art Festival
5010
07
Nsc. One -Time Deposit
21
Assessment Dist. Deposit
60
08
Multi Species Mitigation
23
Median Const/Landscape
IS THE DEPOSIT REFUNDABLE? YES
CONDITIONS TO BE MET BEFORE REFUNDING DEPOSIT?
AMOUNT REFUNE
MAIL REFUND TO:
NO
s
Art Essay Contest
Employee Donations
PM10 Deposit
Athena Award
Community Walk
Planning Fee Deposit
----------- FINANCE DEPARTMENT USE ONLY-----------
DATE REFUNDED CHECK NO. AMOUNT
NOTE. ATTACH TAPE SHOWING CALCULATTON OF INTEREST EARNED, IF ANY.
taper: CR
Uate: 2/10/14 86
Total tendered
Total payvent
Receipt no: 18227
03$47. 88
143847.80
W RT-PAYOR GRN - TRUST ACCT CAN - ACCOUNTING PINK - NUM. CONTROL GROD - ISSUINO DPPT.
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i f
t I f cs i. s
73--5 M FRED WARING Dltivh
PALM DIVERT, CALIFORNIA 9226o 2578
TEL: 760 346—O61I
infow rit5n1jrdm1c.crt.nrg
March 6, 2014
Mr. Justin Baldwin
Presage Real Estate, LLC
200 Palm Ridge Drive
Palm Desert, California 92260
Dear Mr. Baldwin:
Subject: Improvement Agreement for the Real Property Located at 73-811
El Paseo, Palm Desert (Presage) — Gradina Plan No. G-1320
Enclosed for your records is a fully executed copy of the Improvement Agreement. If you
have any questions or require additional information, please do not hesitate to contact us.
Sincerely,
tMM
Or
CITY CLERK
RDK:mgs
Enclosure (as noted)
�✓/cc/enc: Mark Greenwood, P.E., Director of Public Works
IMPROVEMENT AGREEMENT
DATE OF AGREEMENT: February 7, 2014
NAME OF DEVELOPER: Presage Real Estate, LLC
(referred to as "DEVELOPER").
NAME OF DEVELOPMENT: Presage — 73811 El Paseo
(referred to as "DEVELOPMENT"').
DEVELOPMENT RESOLUTION
OF APPROVAL NO.: Not Applicable
(referred to as "Resolution of Approval")
IMPROVEMENT PLANS (Grading Plan) NO.: G -13 20
(referred to as "Improvement Plans").
ESTIMATED TOTAL COST OF IMPROVEMENTS: $28,698.00
SURETY: Cash
LETTER OF CREDITBOND NOS.: Not Applicable
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.
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RECITALS
A. DEVELOPER has presented to CITY for approval a Grading Plan pursuant to
provisions of the CITY's ordinances and regulations relating to approval of Grading Plans.
B. The Grading Plan has been approved subject to the condition of posting cash
bonds in the amount of $28,698.00 and $14,349.00 in lieu of, respectively, a Faithfull
Performance Bond and a Payment Bond (Labor and Materials). All references in this Agreement
to surety bonds shall mean the foregoing cash deposits delivered to the City in lieu of surety bonds.
C. In consideration of the approval of the Grading Plan by those City Departments
having jurisdiction, 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 Grading Plan which is part of 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 (in the form of the Grading Plan) for the
construction, installation, and completion of the improvements have been prepared by
DEVELOPER and approved by the Director of Public Works. The Improvement Plans numbered
as referenced previously in this Agreement are on file in the Office of the Director of Public
Works 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 Director of Public Works.
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 Director of Public Works. The estimated amount is
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stated on Page 1 of this Agreement. The basis for the estimate is on file in the Office of the Director
of Public Works 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 approval of the Grading Plan.
(b) Complete at DEVELOPER's own expense, all the public improvement work 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, if any, 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, if any.
99999.0"99\5760340.1 3
(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 Director of
Public Works, 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) Securi 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:
99999.09999\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 Director of
Public Works 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 Director of Public Works 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
percent (100%) of the total estimated cost of the improvements as changed, altered,
99999.0999915760340.1 5
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 Director of Public Works, or the Director of Public Works' authorized
representative. If the Director of Public Works, or the designated representative, determines that the
work has been completed in accordance with this Agreement, then the Director of Public Works 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.
99999.0999915760340.1 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 Director of Public Works 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 Director of Public Works
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 Director of Public Works to be required to assure the performance of any
other obligations secured by the Security. The balance of the security shall be
99999.09999\5760340.1 7
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) Iniury 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 Director of Public Works.
(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;
99999.099M760340.1 8
(4) DEVELOPER's failure to perform substantial construction work for a
period of twenty (20) calendar days after commencement of the work;
(5) DEVELOPER's insolvency, appointment of a receiver, or the filing of any
petition in bankruptcy either voluntary or involuntary which DEVELOPER
fails to discharge within thirty (30) days;
(6) the commencement of a foreclosure action against the DEVELOPMENT or
a portion thereof, or any conveyance in lieu or in avoidance of foreclosure;
or
(7) DEVELOPER's failure to perform any other obligation under this
Agreement.
(b) CITY reserves to itself all remedies available to it at law or in equity for breach of
DEVELOPER's obligations under this Agreement. CITY shall have the right,
subject to this Section, to draw upon or utilize the appropriate security to mitigate
CTTY'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, CI'TY'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
99999.09999\5760340.1 9
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. The remedy
provided by this subsection (d) 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
99999.0999915760340.1 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) Warr an . 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 famished. 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 11
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,
99999.099M760M.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,
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 Director of Public Works after final completion and inspection of all
improvements. 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
99999.09999\5760340.1 13
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 Director of Public Works 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
99999.0999M760340.1 14
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
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.
99999.09999\5760340.1 15
(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 Director of Public Works, 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
Director of Public Works. 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 Director of Public Works 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 Director
of Public Works 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 Director of Public Works.
(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
99999.09999\5760340.1 16
the date of deposit in the United States mail. Notices shall be addressed as follows unless a
written change of address is filed with the City:
Notice to CITY: City of Palm Desert
73 -5 10 Fred Waring Drive Palm
Desert, California 92260
Attn: Public Works Director
Notice to DEVELOPER: Presage Real Estate, LLC
200 Palm Ridge Drive
Palm Desert, CA 92260
Attn: Justin Baldwin
(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.
99999.0999R5760340.1 17
(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.
IN WITNESS WHEREOF, this Agreement is executed by the parties as of the date
hereinabove first written; by CITY, by and through its Mayor.
DEVELOPER
Presage Real Estate, LLC,
a California limited liability company /
By:
chard A. Umbenhauer,
Attorney -in -Fact
CITY OF PALM DESERT
By li h �! ; . ' ).... -
MAYOR
ATTEST
C CL
APPROVED AS TO FORM:
ClTY-`A7fOH9EY
99999.099"%57603Q.1 18
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
On February -7 . 2014 before me_ `til I %CI.6e-41 b)W- 67— Nntary Pnhlir.
personally appeared Richard A. Umbenhauer, who proved to me on the basis of satisfactory
evidence to be the perso Wwhose name(4 &are —subscribed to the within instrument and
acknowledged to me that@Oshehhey executed the same in authorized capacity�ie ,
and that by GAmM= signature(s) on the instrument the person(o, or the entity upon behalf of
which the persons) -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. Amnmm y
LOPEZ
2004139
WITNESS my hand and official seal. z ti . Calfiornia
b 13, 2017
Signature: ___ --- (seal)
ELIZABETH WPEZ
commissl a ! 2004139
a Notary Publk - CSIXOmia
z
►.Riverside Cowell► I•
M Comm►. H Im Feb 13.2017
99999.09999\5760340.1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Rivi-rside
OnFebruary 27, 7014 before me, _ M. G. Sr_nchPz, Note ry Public
Date
personally appeared
Here in_ser1_N_amaWTW of iFTia OfOcer
Van G. Tarner ---------------------------------
M. G. SANCHEZ
Commission # 1906339
i -� Notary Public - California Z
z Riverside County
My Comm. Expires Oct 29, 2014
who proved to me on the basis of satisfactory evidence to
be the person�4 whose name is/9A subscribed to the
within instrument and acknowledged to me that
he/s*hot executed the same in hist4ar/t)(eir authorized
capacity(jes), and that by his/hdrAh6ir signature(() on the
instrument the person(p), 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 oih ial seal.
/ 7Z10'ary .Signature_— L� .�_�Place Notary Sesl Above Si P
OPTIONAL -r
Though the information below is not required by law, it may prove valuable to persons Jng on the document ,
and could prevent fraudulent removal and reattachment of this form I,anothe/document
Description of Attached Document Grading Plan No. r.-1'. .G
Title or Type of Document: Presage Ppal Estnte, T,LC -• Improvement Agreement
Document Date: February 7, 2014
Number of Pages-
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Van G. Tanner Signer's") e:___
F1 Individual Ll Individua
D Corporate Officer — Title(s): ❑ Corporate icer — Title(s):
C) Partner — O Limited O General _ U Partner — D ' ited ❑ General _
Cl Attorney in Fact • i 1 Attorney in Fact
❑ Trustee Top of thumb here Trustee Top of thwb here
0 Guardian or Conservator 1 Guardian or Conserva r
® Other: ttaynr 1 Other:
Signer Is Representing: Signer Is Representing:
Citv of. P31m AP^ert
02007 Netlonel Notary AssodiAbon- 9356 De Soto Ave., P.O. Box 2402 -Chatsworth. CA 91313.2402 • www.NatlonalNofary.ap Item e5907 Reader. Calf 7b1-Free f.g00-B73-M7
PRESAGE ..
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Legend
-- Circulation Network - Streets
City Boundary ❑ Parcels (04/2015)
2013 n,Red Band_
Green: Band-2 Blue. Band-3
1:713 O
Notes