HomeMy WebLinkAboutC25420A-B Phase I Section 29 AD Ponderosa HomesREQUEST:
SUBMITTED BY:
DATE:
CONTENTS:
Recommendation:
CITY OF PALM DESERT
PUBLIC WORKS DEPARTMENT
STAFF REPORT
Award Contract No. C 25420A&s for Construction Management of
First Phase of Section 29 Assessment District and; Enter into
Reimbursement Agreement with Ponderosa Homes
Mark Greenwood, P.E., Director of Public Works
June 22, 2006
Agreement with Berg & Associates
Agreement with Ponderosa Homes
By Minute Motion:
1.
2.
3.
4.
Discussion:
Award Berg and Associates, Inc. Contract No. C 25420A&B
for construction management for first phase of Section 29
Assessment District in the amount of $271,867.00.
Authorize the mayor to execute the same.
Authorize the Mayor to enter into an agreement with
Ponderosa Homes for reimbursement of construction
management costs.
Appropriate 275,000.00 from unobligated Fund 400 for
Section 29 Phase I Construction Management.
Staff and the developers are in the process of forming an assessment district to
construct the public improvements in the area known as Section 29. The boundaries of
the district are roughly Monterey Avenue, Gerald Ford Drive, Portola Avenue, and
Avenue 35. The majority of the improvement plans are approved and the project is very
near to the start of the bidding process. The nature and scope of the work will require
that a full-time construction manager be hired to oversee the project. In order to provide
quality control the construction manager should be included in the bidding process.
Staff developed a request for proposal, which was distributed by the developers in the
belief that the construction manager would be working directly for the developers. Staff
then clarified that the construction manager will be working for the City and took over
the proposal process at that time.
Staff Report -
Award Contract No. C25420A&B for Construction Management to Berg & Assoc. for
Phase I of Section 20 Assessment District and Approve Reimbursement Agreement
with Ponderosa Homes for cost of construction management
Page 2 of 2
June 22, 2006
Public Works Department staff evaluated the three proposals received and ranked them
as follows:
Berg & Associates, Inc. La Quinta, California
Willdan Ranch Ladera, Califomia
Harris & Associates. Palm Desert, California
Although bond proceeds will not be available until at least November 2006, Ponderosa
Homes, one of the developers, has agreed to make a deposit to the City sufficient to
cover the construction manager's time and costs through November, estimated at
$271,867.00. The developer would then be reimbursed by bond proceeds in the case
that the district is formed. If the district is not formed, the developer will not be
reimbursed.
Therefore, staff recommends that the City Council award Berg and Associates, Inc.
Contract No. c2542OA&B for construction management for first phase of Section 29
Assessment District in the amount of $271,867.00, authorize the Mayor to execute the
same, appropriate $275.000.00 from unobigated Fund 400, and authorize the Mayor to
enter into an agreement with Ponderosa Homes for reimbursement of construction
management costs.
Submitted By:
J
Mark Greenwood, P.E.
Director of Public Works
Homer Croy
ACM for Development Services
/cis
Approval:
Paul Gibson
Finance Director
CITY CO Carlos
L. Orte
APPROVED
RECEIVED
MRETINe DATE
AYES:
NOES:
ABSENT:
ABSTAIN:
nVERIFIED BY:
G:\PubWorks\Staff Reports\2006\June 22\11 Award 0374strtian9Aalet
construction management.doc
N:
DENIED
. OTHER
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CONTRACT NO. C25420A
AGREEMENT
THIS AGREEMENT, made and entered into this 22" d day of June, 2006, by and
between THE CITY OF PALM DESERT, a municipal corporation, hereinafter referred to
as "CITY' and Berq & Associates, Inc. , hereinafter referred to as "CONSULTANT".
WITNESSETH:
WHEREAS, CONSULTANT is a corporation, the principal members of which are
Professional CONSULTANTS duly registered under the laws of the State of California;
and
WHEREAS, CITY desires to engage CONSULTANT to render certain technical
and professional CONSULTANTING services as set forth in Exhibit "A"
(CONSULTANT'S Proposal of Services) in connection with the design of Project:
Construction Manaqement of Phase I of Section 29 Assessment District.
NOW, THEREFORE, the parties hereto agree as follows:
(1) CITY hereby agrees to engage CONSULTANT to perform the
technical and/or professional services as hereinafter set forth.
(2) CONSULTANT shall perform all work necessary within the
schedules provided herein to complete the services set forth in Exhibit "A" attached
hereto and by reference incorporated herein and made a part hereof.
G:1PubWorksNStaff Reports12006Wune 22111 Award contract Section 29 Construction Management=NSTRUCTION MANAGEMENT AGREEMENT.doc
CONTRACT NO.xxxxxx
(3) All information, data, reports and records and maps as are existing
and available from the CITY and necessary for the carryings out of the work outlined in
Exhibit "A" hereof shall be furnished to CONSULTANT without charge by CITY and
CITY shall cooperate in every way reasonable in the carrying out of the work without
delay.
(4) CONSULTANT represents that, it employs or will employ at its own
expense, all personnel required in performing the services under this Agreement.
(5) All of the services required hereunder will be performed by
CONSULTANT or under its direct supervision, and all personnel engaged in the work
shall be qualified and shall be authorized or permitted under state and local law to
perform such services.
(6) The execution of this Agreement by the parties hereto does not
constitute an authorization to proceed
authorized CONSULTANT to proceed.
CITY's Director of Public Works has not
(7) The CONSULTANT shall work closely with the CITY's Director of
Public Works, or his designated representative, who shall be the principal officer of the
CITY. The CONSULTANT shall review and receive the Director of Public Works
approval of the details of work as it progresses. The Registered Civil CONSULTANT
hereby designated by the CONSULTANT as its representative for supervision of the
work required by this Agreement is Thomas Berq, P.E. R.C.E. No. 28449.
(8) The CONSULTANT warrants that he has not employed or retained
any company or person, other than a bona fide employee working solely for the
consultant, to solicit or secure this Agreement, and that he has not paid or agreed to
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CONTRACT NO.xxxxxx
pay any company or person, other than a bona fide employee working solely for the
consultant, any fee, commission, percentage, brokerage fee, gifts, or any other
consideration, contingent upon or resulting from the award or making of this Agreement.
For breach or violation of this warranty, CITY shall have the right to annul this
Agreement without liability, or in its discretion to deduct from the contract price or
consideration, or otherwise recover, the full amount of such fee, commission,
percentage, brokerage fee, gift or contingent fee.
(9) The right is reserved by the CITY to terminate the Agreement at
any time upon seven (7) days written notice, in the event the project is to be abandoned
or indefinitely postponed, or in the event the CONSULTANT'S services, in the sole
judgment of CITY, are unsatisfactory or because of the CONSULTANT'S failure to
prosecute the work with diligence or within the time limits specified or because of his
disability or death. In any such case, the CONSULTANT shall be paid the reasonable
value of the services rendered, based upon CONSULTANT'S standard hourly rates, up
to the time of the termination. The CONSULTANT shall keep adequate records to
substantiate costs and provide copies of original timecards in the event of termination or
suspension.
(10) All documents including tracings, drawings, estimates, reports,
investigations and computations shall be delivered to and become the property of the
CITY. CITY acknowledges and agrees that all plans, specifications, reports and other
design documents prepared by CONSULTANT pursuant to this agreement shall be
used exclusively on this project and shall not be used for any other work without the
written consent of CONSULTANT. In the event CITY and CONSULTANT permit the re-
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CONTRACT NO.xxxxxx
use or other use of the plans, specifications, reports or other design documents, CITY
shall require the party using them to indemnify and hold harmless CITY and
CONSULTANT regarding such re -use or other use, and CITY shall require the party
using them to eliminate any and all references to CONSULTANT from the plans,
specifications, reports and other design documents.
(11) The CONSULTANT shall comply with all federal, state and local
laws, ordinances and regulations applicable to work.
(12) No change in the character or extent of the work to be performed
by the CONSULTANT shall be made except by supplemental authority in writing
between CITY and the CONSULTANT. The supplemental authority shall set forth the
changes of work, extension of time and adjustment of the fee to be paid by CITY to the
CONSULTANT, if any.
(13) In connection with the execution of this Agreement, the
CONSULTANT shall not discriminate against any employee or applicant for
employment because of race, religion, color, sex or national origin. The CONSULTANT
shall take affirmative actions to insure equal employment opportunity and that
employees are treated during their employment without regard to their race, religion,
color, sex or national origin. Such actions shall include, but not limited to, the following:
employment, upgrading, demotion or transfer; recruitment or recruitment advertising;
layoff or termination; rates of pay, or other forms of compensation and selection for
training, including apprenticeship. This clause shall be included in each related
subcontract, if any, awarded by the CONSULTANT.
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CONTRACT NO.xxxxxx
(14) The CITY agrees to pay the CONSULTANT for the work required
by this Agreement on the following basis:
CONSULTANT shall submit invoices monthly for services performed in
the previous month not to exceed the total contract amount of: $Two Hundred Seventv
One Thousand and Eight Hundred Sixtv-seven dollars and 00/100 ($271,867.00
ONLY). CITY agrees to pay all undisputed invoices within thirty (30) days of receipt of
invoice. CITY agrees to notify CONSULTANT of disputed invoices within fifteen (15)
days of receipt of said invoice.
(15) The CONSULTANT agrees to complete the work and submit the
Final Design CONSULTANTING phase as displayed in Exhibit "A".
(16) In the event that any judgment is entered in any action upon this
Agreement, the party hereto against whom such judgment is rendered agrees to pay the
other party an amount equal to the reasonable value of the legal services performed in
his or its behalf in such action and that such amount may be added to and made a part
of such judgment.
(17) This Agreement shall be binding on the successors and assigns of
the parties, but it shall not be assigned by the CONSULTANT without written consent of
the CITY.
(18) The CONSULTANT shall be an independent contractor; not an
employee of the CITY.
(19) Prohibited interests are as follows:
No officer, member or employee of the CITY during his tenure or one year
thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds
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CONTRACT NO.xxxxxx
thereof. The parties hereto covenant and agree that to their knowledge no member of
the City Council, officer or employee of the CITY has any interest, whether contractual,
non -contractual, financial or otherwise, in this transaction, or in business of the
contracting party other than the CITY, and that if any such interest comes to the
knowledge of either party at any time a full and complete disclosure of all such
information will be made in writing to the other party or parties, even if such interest
would not be considered a conflict of interest under applicable laws.
The CONSULTANT hereby covenants that he has, at the time of this
Agreement, no interest, and that he shall not acquire any interest in the future, direct or
indirect, which would conflict in any manner or degree with the performance of services
required to be performed pursuant to this Agreement. The CONSULTANT further
covenants that in the performance of this work no person having any such interest shall
be employed by the CONSULTANT.
(20) The CONSULTANT shall indemnify and save harmless the CITY,
its officers and employees from and against any liability, loss, cost or expense resulting
from any injury or damage to persons or property caused by the negligent acts or
omission of the CONSULTANT, its agents or employees, while engaged in the
performance of this Agreement. The CONSULTANT shall submit to CITY, prior to the
Notice to Proceed is issued, certification of adequate coverage for "errors and omission"
insurance in amounts approved by the City Attorney. Any such insurance shall not be
canceled prior to written notice to and approval from the CITY.
(21) In case of conflicts within the contract documents, the document
precedence shall be as follows:
A
CONTRACT NO.xxxxxx
(a) This Agreement;
(b) Exhibit "A" (CONSULTANT'S Proposal of Services, and any
written modifications thereto).
IN WITNESS WHEREOF, said parties have executed this Agreement the
date first hereinabove written.
CITY OF PALM DESERT
Municipal Corporation
Jim Ferguson, Mayor
Date:
ATTEST:
Rachelle Klassen, City Clerk
APPROVED AS TO CONTENT:
Mark Greenwood, P.E.
Director Of Public Works
David J. Erwin, City Attorney
Company Name
Authorized Signature
Date:
CONTRACT NO.xxxxxx
EXHIBIT "A"
CONSULTANT'S PROPOSAL
OF
SERVICES
9
City of Palm Desert
June 8, 2006
Mark Greenwood, P.E.
Director of Public Works
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
Construction Coordinator & Inspection Services 0"*D
Section 29 Assessment District
Reference: Request for Cost Proposal
Section 29 Assessment District
Subject: Construction Coordinator and Inspection Services
Dear Mr. Greenwood:
M
n
r7i
M
0
As requested, enclosed please find our revised cost proposal based upon the
anticipated needs of the above referenced project. We understand the terms of this
submittal will need to be reviewed and negotiated to meet the City's approval.
We look forward to being of service to the City. Thank you for this opportunity to serve.
Sincerely,
k�z� ��'
Deborah Berg
Chief Executive Officer
Berg & Associates, Inc.
Enclosure: Project Understanding
Berg Cost Proposal for Construction Coordinator and Inspection Services
Berg Schedule of Rates for 2006 and for 2007
302 W. 5t' Street, Suite 210
San Pedro, CA 90731
310 548-9292
310 548-9195 fax
51431 Avenida Navarro
La Quinta, CA 92253
760 391-2330
310 739-9367
760 568-1629 fax
berg?@verizon.net
Cost Proposal 1 of 5 Berg & Associates, Inc.
Construction Coordinator & Inspection Services
City of Palm Desert Section 29 Assessment District
Construction Coordinator and Inspection Services
Section 29 Assessment District
Project Understandina as of 06-08-06
Work shall be separated into two basic stages. Pre -construction is that period of review
and preparation of bid documents and shall include time for the proposed sale of
assessment district bonds necessary for construction to proceed. Initial construction
would commence August 21, 2006, three (3) months prior to bond approval. This initial
construction will require survey and testing to commence in Stage I. Stage II represents
the actual construction period of 11 months plus a 1 month closeout period during which
all field work is completed by the construction contractor and all project documentation is
to be assembled, inventoried and provided to the City by Berg & Associates, Inc.
Work required relates to providing construction management services for construction of
storm drain, sewer lines, water lines and roadway all in accordance with agency
standards as represented on preliminary plans provided to Berg & Associates, Inc. It is
understood dry utilities such as underground electrical or cable services are not part of
this project and that mass grading has been performed over the general construction
site.
Various aspects of the work remain to be identified such as the number of proposed
contracts associated with the work. For this estimate, it is assumed one general
contractor shall perform all work in a period of construction lasting no longer than 12
months; that necessary permits will be available for construction, and acceleration of
work will not be necessary. Berg & Associates shall provide associated survey and
material testing services during initial construction and Stage II construction. Retesting
or re -survey of work originally performed would be considered an extra item of work not
included with this cost proposal. All quality assurance work shall conform to accepted
city standards. Deliverables include daily and monthly reports and all test reports.
It is understood any unspent budget identified for Stage I might be utilized in Stage II
work operations if necessary.
Assumptions
■ Pre -construction 5 months; Construction and Post -construction, 12
months
■ 8-hour work days
■ no weekend work or night work
• no overtime
Cost Proposal (attached)
Cost Proposal 060806 Berg & Associates, Inc.
Construction Coordinator & Inspection Services
City of Palm Desert Section 29 Assessment District
Construction Coordinator and Inspection Services
Section 29 Assessment District
Cost Proposal of 6-8-06
Estimated Budget at Time and Material Charges
Stage I June 2006 through November 2006, 6 months
Staff Hours/Month
Months
Total Hours
Rate
Bud ems_
Pre -construction Period
RE (Construction Coordinator) 40
2
80
124.74
$9,979
Inspector 1 20
2
40
86.85
$3,474
Office Manager 50
2
100
42.00
$4,200
Office Consumables (no mark-up)
2
200.00
$400
Vehicles and Cell Phones (RE and Inspectors)
120
6.50
$780
Initial Construction Period
RE (Construction Coordinator)
Inspector 1
Office Manager
Other Services at Time & Materials
Survey
Tri-State, La Quinta
Material Testing
MACTEC, Cathedral City
Subconsultant Mark-up Allow 5%
Office Rental Per month
84 3.1 260 $124.74 $32,432
176 3.1 546 $86.85 $47,420
176 3.1 546 $42.00 $22,932
$100,000
$40, 000
$7, 000
5 $650.00 $ 3,250
Stage I Budget $271,867
Notes
Labor billing rates include overhead and fee.
Budget is based upon draft plans without contract specifications.
Unused budget in Stage I will be transferable to Stage I{ if
necessary for completion of Stage II work.
Estimated Budget rev. 06-08-06 Berg & Associates, Inc.
1
Construction Coordinator & Inspection Services
City of Palm Desert Section 29 Assessment District
Construction Coordinator and Inspection Services
Section 29 Assessment District
Cost Proposal of 6-8-07
Estimated Budget at Time and Material Charges
Stage II December 2006 through November 2007
Staff
Hours/Month
Months
Total Hours
Rate*
RE (Construction
Coordinator) 88
12
1056
129.74
Inspector 1
176
11
1936
93.46
Inspector 2
176
6
1056
93.46
Office Manager
176
12
2112
43.68
Bud e$ t _
$137, 005
$180,939
$98,694
$92,252
Office Consumables (no mark-up) 12 200.00 $2,400
Vehicles and Cell Phones (RE and Inspectors) 4048 7.00 $28,336
Other Services
Survey Allow percentage of construction cost of $25 million $425,000
Tri-State, La Quinta
Material Testing Allow percentage of construction cost of $25 million $350,000
MACTEC, Cathedral City
Subconsultant Mark-up Allow 5% $38,750
Office Rental Provided by Others
Stage II Budget $1,353,376
Notes
Labor billing rates include overhead and fee.
Budget is based upon draft plans without contract specifications.
*Stage II to start Dec. 1, 2006.
Estimated Budget rev. 06-08-06 Berg & Associates, Inc.
Construction Coordinator & Inspection Services
City of Palm Desert Section 29 Assessment District
Rate Schedule 2006 & 2007
Construction Coordinator and Inspection Services
Section 29 Assessment District
Stage I Effective through November 31, 2006
Base Rate
Overhead
Fee
Billing Rate
115%
10%
Project Manager, PE
$52.75 x
2.15 x
1.1
$124.75
Construction Coordinator
Civil Inspector 1
$38.00 x
2.15 x
1.1
$89.87
Inspector Overtime
$57,00
1.05 x
1.1
$65.84
Officer Manager
$17.76 x
2.15 x
1.1
$42.00
Vehicles/Cell Phones
$6.50 per
hour (excluding overtime)
Stage II Effective December 1, 2006 through November 31, 2007
Base Rate
Overhead
Fee Billing Rate
115%
10%
Project Manager, PE
$54.86 x
2.15 x
1.1
$129.74
Construction Coordinator
Civil Inspector 1
$39.52 x
2.15 x
1.1
$93.46
Inspector Overtime
$59.28
1.05 x
1.1
$68.47
Officer Manager
$18.47 x
2.15 x
1.1
$43.68
Vehicles/Cell Phones
$7.00 per
hour (excluding overtime)
Overtime, if required, shall be charged for inspectors only for any time beyond an 8 hour/day, or
40 hours in a week, and for work on Sundays.
There will be no premium for night work when this occurs as a part of a predetermined 8 hr/day
schedule.
Rate Schedule rev. 06-08-06 Berg & Associates, Inc.
DEPOSIT AND REIMBURSEMENT AGREEMENT (PHASE I IMPROVEMENTS)
in connection with proposed
City of Palm Desert Section 29 Assessment District
THIS DEPOSIT AND REIMBURSEMENT AGREEMENT (PHASE I
IMPROVEMENTS) (the "Agreement") is made and entered into as of the 8th day of June, 2006,
by and between the City of Palm Desert, a charter city, (the "City"), Ponderosa Homes II, Inc.
("Ponderosa"), Sares-Regis Group ("Sares-Regis") and Rillington Communities ("Rillington")
(each a "Developer" and collectively, the "Developers").
RECITALS:
A. The owners of certain property located within the City of Palm Desert (the
"City"), as shown on Exhibit A, attached hereto and incorporated herein, have requested the City
Council (the "City Council") of the City to undertake proceedings pursuant to the Municipal
Improvement Act of 1913 (Division 12 of the Streets and Highways Code, commencing with
Section 10,000) (the "Act") to form an assessment district to be known as the "Section 29
Assessment District" (the "Assessment District") for the purpose of acquiring, constructing and
installing certain public infrastructure improvements of special benefit to the properties in the
Assessment District.
B. The City Council intends, but is not obligated, to be responsible for the
installation and construction of certain of the improvements to be financed through the
Assessment District by the issuance of Bonds (the "Improvements"). To that end, the City
Council intends to solicit bids for the installation and construction of the Improvements (the
"Bids") in accordance with the provisions of the City's Municipal Code and, following the
formation of the Assessment District and the receipt of Bond Proceeds, to award a contract to
install and construct the Improvements to the lowest responsible and responsive bidder (the
"Bidder").
C. The Developers and the City acknowledge that if the City does not award a
contract for the Improvements until after the formation of the Assessment District and the receipt
of Bond Proceeds, the installation and construction of certain of the Improvements may not be
undertaken on a schedule that best meets the needs of the Developers. Therefore, on the terms
set forth herein, the Parties wish to provide for the Developers to deposit with the City a security
deposit to cover the City's cost of the installation and construction of the Improvements shown
on Exhibit B, attached hereto and incorporated herein, ("Phase I Improvement Costs') and a
security deposit to cover the City's estimated costs related to the Phase I Improvements of the
construction manager chosen by the City to oversee the Improvements on behalf of the City (the
"Construction Manager Costs").
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the parties hereto agree as follows:
P6402-10331896254v1.doc
1. Recitals. Each of the above recitals is incorporated herein and is true and correct.
(a) Definitions. Unless the context clearly otherwise requires, the terms
defined in this Section shall, for all purposes of this Agreement, have the meanings herein
specified.
(b) "Bond Proceeds" or "Proceeds of the Bonds" shall mean those net funds
generated by the sale of the Bonds and investment earnings thereon.
(c) "Bonds" shall mean those bonds, or other securities, issued by City for the
Assessment District in one or more series.
Agreement.
(d) "Party" or "Parties" shall mean any one or all of the parties to this
(e) "State" means the State of California.
2. City Awarding of Contract. Subject to the receipt of the deposits set forth in
Section 3, the City agrees that it will proceed towards making a contract award to the Bidder for
the Phase I Improvements within a reasonable time. Provided, however, the City retains the right
to reject all Bids.
3. Devosits for Phase I Imvrovement Costs and Construction Manager Costs. The
City shall not make a contract award for the Phase I Improvements prior to the formation of the
Assessment District and the receipt of Bond Proceeds unless the Developers make the following
aggregate deposits with the City by cash or cashiers' check within three days of a written request
of the City's Director of Public Works as security for payment by the City of the Phase I
Improvement Costs and as security for payment by the City of the Construction Manager Costs:
(a) The amount determined by the Director of Public Works, in his sole
discretion, as being the contract price for the Phase I Improvement Costs based on the Bidder's
Bid amounts (the "Phase I Improvement Costs Deposit").
(b) The amount determined by the Director of Public Works, in his sole
discretion, as the estimated Construction Manager Costs (the "Construction Manager Costs
Deposit").
4. Provosed Formation of the Assessment District and Issuance of Bonds;
Discretion of the Citv. No provision of this Agreement shall be construed as a promise, warranty
or agreement by the City to award a contract for the Phase I Improvements, to form the
Assessment District, to issue the Bonds, or to issue the Bonds in amount sufficient to pay for the
Phase I Improvement Costs or the Construction Manager Costs. The City shall bear no liability
to the Developers for its decision not to award a contract for the Phase I Improvements, form the
Assessment District, issue the Bonds, or issue the Bonds in an amount sufficient to pay for the
Phase I Improvement Costs and the Construction Manager Costs.
P6401/1033/896254v 1 2
5. Right of Entry. The Developers shall grant to the City such rights of entry to
property within the Assessment District as the City may reasonably require in order to install and
construct the Phase I Improvements.
6. Chanee Orders.
7. Sale of Bonds and Use of Bond Proceeds. In conjunction with the issuance and
sale of the Bonds, the Developers may execute and submit a payment request, in a form, and in
the manner, approved by the City's Director of Public Works, requesting disbursement to the
City from the Bond Proceeds of an amount equal to the Phase I Improvement Costs Deposit and
the Construction Manager Costs Deposit and the return to the Developers of the Phase I
Improvement Costs Deposit and the Construction Manager Costs Deposit, which request shall
specify the proportionate shares of each such deposit to be disbursed to each Developer. Within
ten days of the City's receipt of funds pursuant to such payment request, the City shall return the
Phase I Improvement Costs Deposit and the Construction Manager Costs Deposit to the
Developers in the proportionate amounts set forth in the Payment Request, with interest,
determined at the rate and by the method established by the City's Finance Director. Interest on
the Phase I Improvement Costs Deposit shall be returned to the Developers in the same
proportion as the Phase I Improvement Costs Deposit is returned and interest on the Construction
Manager Costs Deposit shall be returned to the Developers in the same proportion as the
Construction Manager Costs Deposit is returned.
In the event Bonds are not issued within months of the date of this Agreement, or
Bonds are issued in an amount which is not sufficient to pay the Phase I Improvement Costs and
the Construction Manager Costs, the City's Director of Public Works may, in his sole discretion,
apply the Phase I Improvement Costs Deposit to reimburse the City for the Phase I Improvement
Costs and may apply the Construction Manager Costs Deposit to reimburse the City for
Construction Manager Costs and the Phase I Improvement Costs Deposit and the Construction
Manager Costs Deposit shall no longer be reflected as deposits on the accounts of the City. In
such event, interest earned on such Phase I Improvement Costs Deposit and the Construction
Manager Costs Deposit, determined at the rate and by the method established by the City's
Finance Director, shall be returned to the Developers within ten days of the date the Phase I
Improvement Costs Deposit and the Construction Manager Costs Deposit are applied to the
Phase I Improvement Costs and the Construction Manager Costs. Interest on the Phase I
Improvement Costs Deposit and the Construction Manager Costs Deposit shall be returned to the
Developers in the proportion specified to the City's Director of Public Works in a writing, the
form of which is approved by the City's Director of Public Works, signed by all of the
Developers.
8. Indemnification. The Developers, jointly and severally, hereby agree to
indemnify, defend (with counsel acceptable to the City), protect and hold harmless the City and
its elective or appointive boards, council members, officers, and employees from any and all
claims, rights, grievances, demands, damages, debts, liabilities, obligations, costs, expenses,
causes of action, or damages of any kind or nature, including attorneys' fees, whether known or
unknown, existing or potential, anticipated or unanticipated, or which may hereafter be
P6401/1033/896254v1 3
sustained, arising out of, related to, or having any connection with this Agreement, the formation
of the Assessment District, the levy and collection of any assessments for the Assessment
District or the issuance of Bonds. The only exception to the Developers' responsibility to
indemnify, defend, protect and hold harmless the City is claims due to the sole gross negligence
or willful misconduct of the City. This hold harmless agreement shall apply to all liability
regardless of whether any insurance policies are applicable or insurance proceeds are available to
the Developers. Any such policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Developers.
9. Release. Except in the event of the City's sole gross negligence or willful
misconduct, each Developer hereby fully and irrevocably releases, waives, acquits and
discharges the City and its elective or appointive boards, council members, officers, and
employees of and from any and all claims, rights, grievances, demands, damages, debts,
liabilities, obligations, costs, expenses, causes of action, or damages of any nature, including
attorneys' fees, whether known or unknown, existing or potential, anticipated or unanticipated, or
which may hereafter be sustained, arising out of, or related to, this Agreement the formation of
the Assessment District, the levy and collection of any assessments for the Assessment District
or the issuance of Bonds.
To this end, each Developer expressly waives and relinquishes all rights and benefits
under California Civil Code Section 1542, which states as follows:
"A general release does not extend to claims which the creditor does not know or suspect
to exist in his favor at the time of executing the release, which if known by him must
have materially affected his settlement with the debtor."
10. Notices. Any notice to be provided pursuant to this Agreement shall be delivered
to the following addresses:
Ponderosa: 6671 Owens Drive
Pleasanton, CA 94588
Attention:
Sares-Regis: 18825 Bardeen Avenue
Irvine, CA 92612
Attention:
Rillington: 41-865 Boardwalk
Suite 205
Palm Desert, CA 92260
Attention:
City: City of Palm Desert
73 -5 10 Fred Waring Drive
Palm Desert, CA 92260
Attention: Director of Public Works
P6401 /1033/896254v 1 4
Copy to: Richards, Watson & Gershon
355 South Grand Avenue, 40th Floor
Los Angeles, CA 90071
Attention: William L. Strausz
Each party may change its address for delivery of notice by delivering written notice of such
change of address to the other party.
11. Assignment. The Developers may not assign their interest in this Agreement
without the prior written consent of the City.
12. Severability. If any part of this Agreement is held to be illegal or unenforceable
by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the
fullest extent permitted by law.
13. Entire Agreement. This Agreement contains the entire agreement between the
Parties with respect to the matters provided for herein.
14. Non -Liability of Officials and Emvlovees of the City. No member of the City
Council or any officer, agent, or employee of the City shall personally be liable to the
Developers in the event of any default by the City under the terms of this Agreement.
15. Independent Contractor. It is agreed to by the Parties that the Developers shall act
and be independent contractors and not an agent or employee of the City.
16. Time of Essence. Time is of the essence in the performance of this Agreement.
17. Authority to Execute. The persons executing this Agreement on behalf of the
parties warrant that they are duly authorized to execute this Agreement.
18. Attorneys' Fees. If any party brings an action to enforce the terms hereof or
declare its rights hereunder, the prevailing party in any such action shall be entitled to its
reasonable attorneys' fees to be paid by the losing Party as fixed by the court.
19. Interpretation. This Agreement shall be interpreted as though prepared by both
parties.
20. Amendments. This Agreement may be amended or modified only by written
instrument signed by all Parties.
21. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original.
22. Governing Law. This Agreement and any dispute arising hereunder shall be
governed by and interpreted in accordance with the laws of the State of California.
P6401/1033/896254v1 5
23. No Third Party Beneficiaries. No person or entity shall be deemed to be a third
party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to
confer upon any person or entity, other than the City, the Developers, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year written above.
ATTEST:
City Clerk
P640111033/896254vl
CITY OF PALM DESERT
Mayor
DEVELOPERS
PONDEROSA HOMES II, INC.
By:
Its:
By:
Its .
SARES-REGIS GROUP
By:
Its:
By:
Its:
RILLINGTON COMMUNITIES
By:
Its:
By:
Its:
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