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Home My WebLink AboutPP 07-13 - Firestone Tire Store/Fountainhead Indio LP CITY OF PALM DESERT PUBLIC WORKS DEPARTMENT STAFF REPORT REQUEST: RELEASE PERFORMANCE SECURITY FOR PP 07-13 (FIRESTONE TIRE STORE) AND ACCEPT MAINTENANCE SECURITY FOR A PERIOD OF ONE YEAR SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works APPLICANT: Fountainhead Indio, L.P. 3636 E. Birch Street, #270 Newport Beach, CA 92660 BOND COMPANY North American S�ecialty Insurance Company 650 Elm Street, 6t Floor Manchester, NH 03101 BOND NUMBER 2097312 DATE: December 10, 2009 CONTENTS: Performance Security Treasurer's Receipt for Trust Deposit Agreement Vicinity Map Recommendation By Minute Motion, release performance security for PP 07-13 (Firestone Tire Store) and accept maintenance security for a period of one year. Backqround The Firestone Tire Store is located at 78-018 Country Club Drive between Desert Country Circle and Washington Street. At the time of permit issuance, performance security in the total amount of $50,196 was posted with the City for grading and off-site improvements. Grading and off-site improvements are now complete. Staff has inspected the site and found it to be acceptable. Per Chapter 26.28.100 of the Municipal Code, the applicant must post maintenance security for ten percent of the amount of the performance security. The applicant has posted cash with the City to be held until release by Council action one year from now. Staff Report Release Performance Security for PP 07-13 (Firestone Tire Store) and Accept Maintenance Security for a Period of One Year December 10, 2009 Page2of2 Fiscal Analvsis There is no fiscal impact associated with this action. Prepared By: Depart e ad: '� � �� A�i �l.,d�(oi ��-��' Christina Canales, Assistant Engineer Mark Gree ood, P.E., Director of ublic Works CITY COUNCILACTION AYPROVF:D—_ r/ nFNIFi� Paul S. Gibson, Director of Finance KrCEIVF;p OTNF,I2 �F�'-7'(NG DATE o2-/C�-�� Approv�l: Avrs: / ��, ; � -� NOGS: N�r' � ' AI3SI;NT. �1�1r � � _ �� ` �, ABSTAIN: ` J � . - " C�� VERIFIF � ,D BY: � L John,,,l�/I. Wohlmuth, City Manager Original on File with City Clerk s Oftice r� t � , ' BOND N0. 2097312 � __..___._._��fUIfi�,II�TG�,IIl3k� lI�P�f3��i4 '�'vT��'1�,T�3 CITY OF PALM DESERT STANDARD FORM - PAYMENT BOND (lABOR & MATERIALS) NAME OF PROJECT' EI�STONE TzxE sTox� NAME OF DEVELC?PER:FOiJN�'AINHEAD INDIO, LP NAME OF SURETY: NORTH AMERICAPI SPECTALTY TNSURANCE COMPANY EFFECTIVE DATE: �"�� 24, Zoo9 EXPIRAT[ON DATE• Ju� 2a� zozo AMOUNT OF BOND: $2s,o9s.o0 BOND NUMBER: 2a9�312 PREMlUM: $62�.00 KNOW ALL MEN BY THESE PRESENTS: That the person, firm, carporation, entity, or otherwise, named on Line 2 of Page 1 hereof without regard to gender and number, hereinafter referred to as PRINCiPAL; and the corporation named on Line 3 of Page 1 hereofi, a corporation authorized to do business in the State of CaEifornia and presently possessed of authority under Title 6 of the United States Code to da business under Section 6 to 13 thereofi in the aggregate amounts hereof, hereinafter referred to as SURETY; are jointly and severely held and firmly bound unto and all materialmen, persons, companies or corporafions furnishing materials, provisions, provender or other supplies used, in, upon, for or about the performance of the work cantracted to be executed or performed under the terms of that certain fMPROVEMENT AGREEMENT hereinafter mentioned ar�d a[I persons, companies or corporations renting or hiring teams or implements, or machinery, for contributing to said work to be done, al� persons who performed work or labor upon the same, and ail persons wha supply both work and materials, and whose cEaim has not been paid by PRINCIPAL in the just and full sum mentioned on Line 5 of Page 1 hereof for the payment whereof, well and truly to be made, said PRINCIPAL and SURETY bind themselves, their heirs, administrators, successors and assigns, jointly and severa[(y, fiirmly by these presents. THE CONDITION 4F THE OBLIGATION is such �hat whereas the above- baunden PRINCIPAL has entered into an [MPROVEMENT AGREEMENT with the City of Pafm Desert, a municipal corporation of the Sfiate of California, hereinafter referred to as CITY, far the construction of public impravements in the project named on Line 1 of Page 1 hereof, which said IMPROVEMENT AGREEMENT is by this reference incorporated h�rein: NOW, THEREFORE, if the above-bounden PRINCIPAL, contractor, person, company or corporation, or his or its subcontractor, ar subcontractors, fails #o pay for any materials, provisians, provender, ar the supplies, or teams used in, upon, for, or abau# the performance ofi the work contracted to be done, or far any work ar labor done thereon of any kind, or for amounts due under the Unemployrnent Insurance Act with respect to such work for labor, SURETY on this bond will pay the same, in an amounfi not exceeding the sum specified in this bond, and also, in case suit is brought an this bond, a reasonable attorney's fee which shall be awarded by the court to the prevailing party in said suit, said attorney's fee to be taxed as costs in said suit anci to be included in the judgment therein rendered. This bond is executed and filed to comply with the provisions of all appficable CITY ordinances, resolutions, rules and regulations suppfemental thereto; and all amendments thereto; and shall 'snure to the benefit of any and all materialmen, persons, comparties or corporations entitled to file claims under and by vi�tue of the provisions thereof. IN WITNESS WHEREOF, PRINCIPAL AND SURETY have executed this instrument the dafe mentioned an Line 4 of Page 1 hereof. BY: PRINClPA SIGNATURE PRINCIPAL'S SIGNATURE CRAIG SMITH, MAI�A,GER CAlIFORNIA A�L-PURPOSE ACKNOWLEDGMEN"T No.5193 State of California } �OPTIONAL SECTEON- SAN DIEGO CAPACITY CLAtMED BY SIGNER County of � Though statute dves not require the Notary to fill in the data below, doing so may prove invaluable to persons retying on the document. On 06/24/200� before me DEBORAkI D. DAV'IS, NOTARY PUBLZC �fNQfVIDl1AL � , personally appearetl Mz�mTxEw C. GAYNox ❑CORPORATE OFFICER(S) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are T�T�E�s? subscribed to the within instrument and acknowledged �PARTNER{S) � LIMITED ta me that he/she/they executed the same in his/her/ ❑ �ENERAL their authorized capacity{ies), and ihat by his/her/their �AT70RNEY-IN-FACT signature(s)on the instrumentthe person(s),or the entity ❑T��ISTEE(S) � upon behalf af which#he person(s) acted, executed the �GUARDIAN/CONSERVA70R =�� . SE°`°`' instrument. �,,.� ,��t. "�s� ��B��AW b.4aVis ❑OTHER: � `' � �, C��M.#1737411 � r`��>� �, iV07qRY PUBUGCALIFORNIA � I certify under PENALTY OF PERJURY under#he laws of 'r�"i"� SAN DIEGO COUNTY N the State of California that the fore oin °i�FON:^ iVly Comm,Exp, ApRlt 21,2oi 1 9 g paragraph is true and correct. SIGNER 1S REPRESENTING: W�j��ss f11y h7�tl 8(1CI Off1C18I S81I. NAME OF PERSON(S)OR ENTITYQES) Signature of Notary OPTIONAL SECTiON 7HIS CERTlFfCATE MUST BE ATTACHED TO 71TLE OR TYPE QF�OCUMENT THE DOCUMENT DESCRIBED AT RIGHT: NUMBER OF PAGES DATE OF DOCUMENT x Though the data requested here is not required by law, it could prevent irauduient reattachment of this torm. SIGNER(S)OTHER THAN NAMED ABOVE �C�14.��3l��A A�.�,-P��P4�S� �.�C�C�mW��G�AI��'S _ _ State o#Galifornia Gouni}I.of,_.,,,,1...L,_.,..�-aC- . �n. Jt1� a�{'I� Z00 bef�re me. s�1�+ �n �aa'tiC.o IJu��«- , � m tnxn rtemo ane T uC`e��r L�MeP'` per9ori8lly appeased • G1'� � .Sr'Y1+'� � sy who prvved to•rr�b on•!h��basis t�f satlsfacta..ry svid�rice•te be the.person�s'j whose name�l�fa�•subscribect�ta:the wtfhfn instnrment an�l acknowledged to me that heiel�e�t�3ay.executed fhe SaniB in iils�i�tf�eir authori2ed capacit}�'tes�;and ihat try, hieR�erllheirsignaiure(s�tsn t�e }�-��► instruf�tent She psrson.($�;�r'.tt1e entfty upon befiaif of ] ,��••�� ` y SHERIANN FRAPJCp wYiich thB parsonf8'j�cted, executed the instr't�meni. a '�r � COMMISSION#1757643 p � ' NotaryPublic-Calilornia � ! certify under PENAL.TY-OF P��iJURY under the laws ] � , � oRar,ce cour,ry of{�e.State of.California.fhat the faregoing paragraph is MyCanm sxpKo�.r��y,s,zon+ trus and correc�. �.s�..•-o-..-�-�•.-�-.r� WITiUEss my a�d and offtcisl seal, Signature � "'�""— ��/L�r�GtS Pbca kpSuy�3aSl'Abora Sl0+�aluro-�ot Ncuuy PubHc OPTIDNA� . Though.Yhe tnhimr�tlon b�knv"iS:not required by-faW,fC1rttY P+'�'��$�.fiersoras ialYirrg otr the document mad.cFrald-pseverit fraiudulrritiemdvala}rrd te�t7uchmenf ofthis Aorrit'tv-etfothePdaC�irrBnt. �7escngtian of Attacheci pocumeni ��i'de,ar Type oi�t7ocvmenr . Do�urne'ntDate: Number:of Pages:, . Slgner�s}�btti�r�`han Nam�d�AYiove: _ ,�a�aCity{les)Gl�itned by Sigrie'r(S} ��` • s`igner's i�lame: SigneYs Nen1e: t� ind{v�duai ❑Irtdivldual D c.,(3Q[porate-Ofiic:er--Ti1le,('s}: - - QCorporateOftEcer—Tltie(s): p��Partaei—.O.Limited O Gans7'ai . p Parhter---O.:Limited ❑[�eneral _ p Attomey.'sn�act• • �� D Attnmey In Fact ' " C3 'TI't�slee roP o�jrc,�i,si ncrc E3Trustee Toa crmutnn.rtbre � Cl Quardian.or Cdn�erv�tar C3 Guar�ari�or Conservator O'Other: 0 Other: Signer�ls'Reprasenting: 8igrterls Repressniing: 'oz'ob�ta��annmy��;on•airoo.suo,w.,P.L7:Gae3tU2.Cn�wrtir.GA017142<R2•mt�cNnt1a7a8Jatnryary ltam#59D7•AoOidn;eaan�F�y-aaaar�2� Inte3SGro RapidSc:ui � NASSURETY GROUP NORTH AMERICAN SPEC[ALTY iNSURANCE COMPANY WASHINGT�N INTEItNATiqNAL INSURANCE COMPANY _ GENERAL PQWER OF ATTORNEY KNQW ALL MEN BY THESL PRESENTS,THAT North American Specia{cy lnsurance Compa�iy,a corporation duly organized and existing under Ia�vs of il�e State of Ne�v I-Iampshire,and having zts principal oPfce in the City of Manchester,I�lew Hampshire,and Washington Intemational insurance Company,a corporation organized and existing under the laws of die State of Ne�v Hampshira and l�aving its principal office in the City of Itasca,[Elinois,each does liereby make,constitute and appoint: JOHN Cs.MALONEY,IifiLEN MAf.,ONEY,MARK D.IATAROI,A, MATTHEW C.GAYNOR and DEBORAI-I D.BAVI3 JOINTLY OR SEV�RALLY lts true and lawful Attomey(s)-in-Pact,to make,execute,seal and deliver,for and on its bel�alf and as its act and deed,bonds or other�vritings obligatory in the nature of a bond oa behalf of each of said Companies,as surery,on contracts oF sureEyship as are or may be required or permitted by law,�egulation,contract or othenvise,provided diat no bond or undertaking or contract or suretyship executed under tliis auUioriry shall exceed the amount of: TWENTY-FIVE MILLION(�25,006,000.04)DOLLARS Tliis Po�ver of Attomey is granted and is sigi�ed by facsimile under and by d�e audtority of t[ia following Reso[utions adopted by tlte Boards of Directors of both Nortl�Au�erican Specialty Insurance Company a�id Washington International insurance Company at meetings duly called and held on the 24°i oP Marcb,2000: "RC50LVGD,[hat any tsvo of the Presidents,any tvlanaging Director,any Senior Vice President,any Vice President,any Assistan[Vice Fresident, Uie Secretary or any Assistant Secretary be,and each or any of them hereby is authorized to execute a Po�ver oPAttomey qualifying the attorney named in the�iven Power of Attomey to eaecute on behalf of the Company bonds,undertaki�gs and all contracEs of surety,and that eadi or any of them hereby is authorized to atYest to die execution of any such Power of Attorney and to atEach tl�erein fhe seal of the Company; and it is FURTEIER RESOLVED,that the signature of such officers and lhe seai of the Company may be affixed to any such Power of Attomey or to any certiCcate relating diereto by facsimite,a��d any such Power of Attomey or certificate bearing such facsimile signatures or facsimile seal sliall be binding upon the Coinpany when so affxed and in tl�e future with regard to any bond,undertaking or contract oPsurery to which it is attached." ````�yQGpFUTA',jNSG�i /S�J�I /� ;�w�.�Rp��`W / cn ��rx; By Li t �� ,z.t��o kij,fiG'� 1�'' Su��, :p= Sleven P.Andcrson,PresiJenl&Chief Exesutivc Officer of 1Yast�ieRton Inlernalional lnsurunce Campany �x; ,5'�� e �W,74, 1873 Ptu:�� S•Smior rce PresiJent of North American Specialty[nsurynce Company �y O: ;�� t:�L ��: �f//''y�oN p��\\``� �: a4 �y•� � � � _ u'"�`� ��irirtiumam��` By �'.xu-� �...-- `�,��"*'••� Ouvid M.Layman,Scnior Viee Prcsidcn ofWnshinpton Iutunnlional lnsuranee Compnny r��"�'"� &�ce Prcsidu�t al'Narlh Americao Specially]ns��:�nee Caropmiy TN WITNESS WI-IEREOr,North American Speciatry Insurance Company and Wasl�ington international Insurance Compa�iy I�ave caused their official sea[s to be hereunto affixed,and these presents to be signed by their authorized officers this ►3th day o!' March Zp09 . NorEh American Specialty Insurance Company Wasloington InternaYional Insurancc Company State of Illinois County of Du Page ss: On this 13t1i day of March Z009 ,before me,a Notary Public personally appeared Steven P.Anderson ,President and CEO of Washington International Lisurance Company and Senior Vice President of NoriEi American Specialty lnsurance Company and David M.Layman, Senior Vice President of Wasliington Intemational Insurance Company a��d Vice President of Nortlt American 5pecialty Insurance Company, personally known to me,�vlio beino by me duly swom,acl:nowledged tl�at tliey signed tlie above Power of Attorney as oCGcers of and ackno�vledged said instrument tp be the voluntary act and deed of their resuective comeanies. "OFH7CtAt,SPAL" �� /�/. Q y �.� DONNAD.SKLENS ��y{PYa NularyPublic,StatcofIDipais �onna D.Sklens,Notary Public My CommissionE�ires 10/C)6�2021 I, .lames A.Carpenter , U�e duly elected Assistant Secretar� of North American Specialty Insurance Company and Washington Inte�national lnsurance Company,do hereby certify Ui�t the above and foregoing is a riue and correct copy of a Power ofAttorney givea by said North American Specialty Insura�tce Con�pany and Washington Infernational Insurance Company,which is still in full force and effec[. 24TH JCTNE 09 . IN WITNES3 Wi-fEREOF,I have set my hand and a#'�xed the seals of Qie Companies this_day of ,20_ C�"�`�8-�,�;;,�- Jan�es A.CarpcNcr,Vice President&P.ssismnt Secreta��oCWashiny�on iGen�atirna�6:w�yu��np;,ny s NonL American Spccialty Insurancc Compnny � . ; . . BUND Np. 2097312 PREMIUM: $b27,00 F�remr;tm��F'or Ccn�r�.cETerm ��,�i�Su�j��t To��ju�tmer# CITY OF PALM DESERT Based C}n FinaE Coritr�ci Pr�c� STANDARD FORM - FAITHFUL PERFORMANCE BOND NAME OF DEVELOPMENT: �I�STONE '�IRE sToxx� NAME OF DEVELOPER: FOUDITAINHEAD INDIO, LP NAME OF SURETY: �ORTH AMERTCAAT SPECIALTY INSURANCE COMPANY EFFECTtVE DATE: �� 2�, zoos EXP[RATION DATE: �NE 24, 2oio AMOUNT OF B�ND: $25,098.00 BOND NUMBER: 2097312 PREMIUM: $�2�•o0 KNOW ALL MEN BY THESE PRESENTS: That the person, firm, corporation, entity, or otherwise, named on Line 2 above, withaut regard to gender and number, hereinafter referred to as PRINCIPAL, and the corporation named on Line 3 above, a carparation authorized to do business in the State Qf Califiornia and presently possessed of authority under Title 6 af the United States Code to do business under Sections 6 to 13 thereof, in the aggregate arnounts hereofi, h�reinafter referred to as SURETY, are jointly and severally held and firmly bound unto the City af Palm Desert, a rrEunicipal corporation af the State of California, hereinafter referred ta as CITY, in the sum mentioned on Line 6 above, for the faithful performance of that cerfain 1MPRQVEMENT AGREEMENT between PRINCiPAL and CITY regarding the subdivision named on Line 1 above, as required by the provisions of the Subdivision Map Act and C1TY ordinances, resolutions, rules, and regufations, for the payment of which sums weli and truly to be made, PRINCIPAL and SURETY hereby bind themsefves, their heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents. THE COND[TiON of the foregoing obligation is such that if the said PRINCEPAL sf�a(I faithfully perform the covenants, conditions, and agreements contained in that certain 1MPROVEMENT AGREEMENT between PRlNCIPAL and CITY regarding the developm�nt named on Line 1 of Page 1 hereof, which said agreement is by �his reference incorporated herein, on its part to be kept and perFormed, in a manner and form fherein specified, and shall furnish materiaf in compliance with the specifications and perform all that certain work and improvement in said CITY which is more particu[arly described in said IMPROVEMENT AGREEMENT, �hen the obiigation with respect to fhe faithful perFormance of said IMPROVEMENT AGREEMENT shall be uoid, otherwise to remain in fulf force and effect. The said SURETY, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the [MPROVEMENT AGREEMENT or fio fihe-work to be performed thereunder or the specifications accompanying the same shall in anywise affect its obligations on this bond, anc{ i�does here�y waive notice af any such change, extension of time, alteration or addition to the terms of the IMPROVEMENT AGREEMENT, the work, the specifications or any feature or i�em of performance thereunder. In the event it becomes nec�ssary for CITY to bring an action to enforce this bond, SURETY shail pay CITY'S reasonable attorney's fees and court costs in _ connection �herewith. !N WITNESS WHEREOF, PR[NCIPAL and SURETY have executed this instrument on the date mentioned on Line 4 of Page 1 hereof. ��r: PRINCIPAL'S S NATURE CRAIG SMZTH, �NAGER PR�NT NAME FOUNTAII3HEAD INDIO, LP. , A CALIFORNIA LIMITED PP.R�'IVERSHZP FH DESTELOPMEI�T, LLC. , A DELAWARE LIMITED LIABILITY COMPANY ITS GENERAL F'ARTNER TITLE & COMPANY NAME PRINCtPAL'S SIGNATURE C�►LIFORNIp►Ai.L-PURP�S�ACKNOWLEDGMENT "°.5,93 . z State of Califomia ) �OPTIONAL SECTION� CAPACITY CLAlMED BY SIGNER SAN DIEGO Though statute does not require the Notary to Gounty of � fill in the data below, doing so may prove invaluabls to persons retying on the document. 0n 06/24/2009 before me, DEBORAH A. AA'VIS, NOTARY PUBLIC ❑INDIVIDUAL �CORPORA7�OFFICER(S} personally appeared MATTHEW C. GAYNOR TIrLE(S) who proved ta me on the basis of satisfactory evidence to be the person(s� whose name(s) is/are �pARTNER(S) [�LIMITED subscribed to the within.instrument and acknowletlgetl �GENERAL to me that he/she/they executed the same in his/her/ �ATTORNEY-IN-FACT their authorized capacity{ies}, and that by his/her/their signature(s)on the instrumentthe person(s),or the entiry ❑rRUSTEE(S) fA"r, upon behalf of which the person(s) actetl, executed the �GUARDIAN/C�NSERVATOR �, .,��. ,.A vD�soRAN!�.DAvls 9nstrument. COMM.#f73741� �OTHER: � =��t k . �� NO7ARY PiJBi.3GCALiFORtJfA N I certify under PENALTY OF PERJURY under the laws of /� "�'r .c "" SAN DIEGO COUNTY �I ��F R��'� MyComm Exp. APRfL21,za�1 the State of California that the foregoing paragraph is �`� �� true and correct. SIGNER IS REPRESENTING: W�jN�SS I71y�1af1CJ 811d OffIC18I SB1I. NAME OF PERSON(S)OR ENTITYpES) Signature o' f Notary OPTI(}NAL SECTION THIS CER7IFICATE MUSI'BE ATTACHED TO TITI�E OR TYPE OF DOCUMENT THE DOCUMENT DESCRIBED AT RIGHT: NUMBER OF PAGES DATE OF DOCUMENT Though the data requested here is not required by law, it could prevent Traudulent reatiachment of this form. SIGNER{S)OTHER THAN NAMED ABQVE C�.i��Bi�BB� A�.:��9�P�sE ��CN�B'4fl�.f��i8�9�EA�1�" � _ St�te of Califomia Courny of �rOlrt'�ii.2�,r - ��he a`�.2�9 befare me, �� (��1 � � eea u�cea m,w sro�ieo ao'�fl�ce'r D�fa personaffy appear.ed. Cr � s►'1's i'�+ �� q� 6 . wha proved to rne�on the basis of satisiacton/e'virience�to �e�the_person�whose name(�is�a�rsubscri6ed to�fhe within inslrumen! an� acknoWietiged ka me tF}at heEs�s�i�egc executed the same m his�Me�la�e��i�thotiz2d capacity(ies}, arid ihat by lvsAzcrfFheir sicJnature(�'J on ttie instrumerit fhe parso�'�, flr the entity �poh behaif oP � ,`,,,,;,� , SH�RI AlVN FRANCO w}�ich the person�aoted,executed tf�e instrwment: >i COMMISSION it 1757643 � Z ? NotaryPuUlic-Califwn�a � � �g��jr under PEf�A�,�'1'•OF PEFt:lURY under if3e Eaws � � .� pRANGE COUNTY ��' My Comm Expires July 19.2a,+ of-the Sta#e of Callfiotnia that 1be foregofn�,paragraph.is true�and carreet_ WI7N�SS rrr� and ar�d o#f'iCial seal. Signature `�+,�- t.1^��- -- Cl""a'}"`'r P1wD PlCm'ry$bat AbOva� 6ly�uwtu o HAi dry'PtrGAc , . , 7�Mugh��end.cw.dilp veritlra�7Uuten��re+ribVB�d��tt�chQ�Y of'h�le to persaysr�lytng•on Uie�aaumerrf _ s form to+�f�o[herdbcumnnt. i]escription cr!Attached E?ccu►neni 'Tifls-0rtypa oi:Dcoument .. . .. . . . Oocument Dat'e�' Num4ier:of Pa�es: 5igneK5)Oth'ecThan Named Aha+re: . G�pac3ty(ies):Ciaimed 5y Signer{s) �` SIgfTBYs Name: SigneYs Name: . . , C� lndividu2�f E7lndiv}dusi G] �.Corpofbte.•Otf�cer—Tttte(s): C3 Gorporate Officer—Title{s): ��:P.aririer—CJ'i.ittti[ed•[�G�ne�al , CJ Pariner�--QLirraiced ❑Generaf O' Auarney in Fact � ' OAitomay in Faoi : zcporv,ir�b�r� C] 'Cru$te'e 'tY�pct iNmi,ti t;ere p'[Yustee p :Guardian:a�•C.oriservator [�Guard€an.or Conservator O .Olfier. Q��' �igner ls.f{epres�ntln8: .� $igner!s Representing:.,.,...,,�.�: --.-- -- -- IntetiGro ItapidScan NASSURETY GROUP NORTH AMER[CAN SPBC(ALTY INSURANCE COMPANY WASHINGTON INTERNATIONAL INSURANCE COMPANY — GENERAL POWER OF ATTORNEY KNOW ALL Iv1EN BY TH�SE PTLESENTS,THAT North American Specialty Insurance Company,a corporation duly org�uiized and existing under laws of the State ofNew Hampshire,a��d having its principal office in the City ofManchester,New Hampshire,and Washington Intarnational leisurance Company,a corporation organized and existing under the(aws of the State of New Hampshire and liaving its principal office in the City of Itasca,Illinois,each does hereby make,constitute a�id appoint: JOHI�(G.MALONEY,HEL�N MALONEY,MARK D.IATAROLA, MATTkIEW C.GA'Y`NOR und DEBORAH D.DAVIS JOINTLY OR SEVERALLY Its we:u�d lawful Attomey(s)-in-Fact,to make,execute,seal and deliver,for and on its bei�alf and as its act and deed,bonds or other writings obligatory in the nature of a bond an behalf of each of said Companies,as surety,on contracts of suretyship as are or may be required or pemiitted by law,regutatiwt,contract or ot�icnvise,provided that no bond or undertaking or eontract or suretyship executed under this audiority sl�nll exceed the amount of: TWENTX-FIVE MILLIQN($25,000,000.00)DOLLARS Tliis Power of Attomey is granted and is signed by facsimile under and by 1he authoriry of die following Resolutions adopted by the Boards oF Directors of both North American Specialiy lnsurance Company and Washington Intemational Insurance Company at meetings duly called and held on the 24�'of Marcl�,2000: "RESOLVED,that any t�vo of the Presidents,any Managing Director,any 3e��ior Vice President,any Vice President,any Assistant Vice President, Elie Secretary or any Assistant Secretary be,and each or any of them hereby is authorized to execute a Power of Attorney qualifying tlie attorney named in the given Power of Attomey lo execute on behalf of the Company bonds,undertakings and all contracFs of surety,and that eac[�or any of them lrereby is authorized to attest ro tlte execution of any such Power of Attorney and to attach therein the seal of the Company; and it is PURTHER RESOLVGD,d�at d�e signalure of such officers and lhe seal of the Company may be affixed to any such I'ower of Attomey or to any certificate relating thereto by facsimile,and any such Power oPAttorney or certificate bearing such facsimile signatures or facsimile seal sliall be binding upon the Company when so affixed and in dle future widz regard to any bond,undeMaking or contract of surety to which it is attached:' a��Q�G1AUiTY��,��i��i ��i�� ``��SIOW urr�� i �y;OpIDR,j•.,G i � P�L N� — G r�.'Pr— By y =�aAp4...,�r�G� . F7" ��?� SEAL =o= s�eren P.Andcrson,President&Chicf Executi��e Ofticcr o[Nnshington�nternalianal Insuranee Company ,Z.: S�� n �y¢y:7i 1973 Py:�y &Saiior Vicc Presidenl ofNorlhAmcriean Spaialty Insurancc Compnny �O: :�€c ?1y ♦ O� � •h� %i�.,ON r T.N:D�� :., O '''dy a \\` � ��ty�9�'� ��i�frnwntin�� r�'��---�— ,�...�...�� Unvid M.Leyman,Senior Vice Arcsidrnt oC\VasE�ingtmf Internationnl Insurance Company ��""pII� &Vice PresiJenl ofNorth Arnericmi Speeinity Insur.u�ae Comp�ny IN WITNLSS WFI�REOF,Nortli American 5pecialty Insurance Company and Washington International Insurance Conipany have caused their of6cial seals to be[tereunto affixed,and these presents to be signed Uy tlieir authorized officers this ►3th day of March ,Zp09 . I�orth American Specialty Insw•ancc Company �VasEiington Internatipnal Insm•ancc Company State of Illinois Counly of Du Page ss: On this f3t1�day of March ,2009,before me,a Notary Public personalty appeared Steven P.Anderson ,President and CEO oF Washingcon Intematio��al insurance Company and Senior Vice 1'resident of North American Specialty Insurance Company a��d David M.Layman, $enior Vice President of Wasl�ington International Tnsurv�ce Coinpany a��d Vice President of North American Specialty Insurance Company, personaUy kno�vn to me,who being by me duly swom,acknowledged diat they signed clie�bove Power of Attorney as officers of and acknowledged said instrument to be the vo[untary act and deed of their resnective comnanies. "OFi-ICL�,t,sEA['.' ;rJ��rtnla ull. �-�.Cl BO1dNA C}.SKLENS No�aryrubHe,SwteofIDinois Donna D.Sklens,Notazy Public My Commission F�:xpins 1011}G/1012 i, James A.Carpenter the du[y elected Assistant Secretary of North American Specialty Insurance Company and Washington Intemational Insurance Company,do hereby certify that the above and foregoing is a true and correct copy of a Power of Attorney given by said Nortl� American Specialry Insw�1nce Company and Washingto�z Internatio3ia]Insurance Company,which is still in full force and effect. 24TH 3UNE 09 I�I WITNESS WHEItEOF,t have set my 6and and afFxed the seals of tlie Companies this_day of ,20_ �'`'�,r��_.._ Jmnes A.C�pen[er,Vice Presidmt&AssiS�ant Secs�uy of Wisti�g;�n Iatematicry insurwir.c Cmnpany K NorthAmericmSpecialtylnsuranceCompany � , �� ,� � � � � CITY OF PALIVI DESERT � TREASURER'S RECEIPT FOR TRUST DEPOSIT DATE_ I I I�`'� !C�"1 AMOUNT �: . DEPOSITOR'S NAME REASON FOR DEPOSIT ,� q` /� � , 1,r�� .��- ��`��i � s�i� ,�L��-r��.�h �ri v�'. RECEIVED BY � . �C�-L�, � ACCOUNT NUMBER(circle one): 610-0000-228-XX-00 � Deposit in Lieu of Bond 11 Landscape&Lighting 24 Art Essay Contest 02 Monumentation 13 Rent Review Commission 25 TUMF 03 Monterey 170 14 Candidates Deposit 34 Employee Donations 04 Grading Bond 15 Mitigation Fringe Lizard 39 PM10 Deposit OS 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 DEPOSIT? Ir� �� `C3L� ` L��+i'"I�. T AMOUNT REFUNDABLE Z DATE TO BE REFUNDED MAIL REFUND TO: r ' �— � ' FINANCE DEPARTMENT USE ONLY — DATE REFUNDED CHECK NO. AMOUNT NOTE:ATTACH TAPE SHOWING CALCULATION OF INTEREST EARNED,IF ANY. WHT-PAYOR GRN-TRUST ACCT CAN-ACCOUNTING PINK-NUM.CONTROL G.ROD-ISSUING DEPT. IMPROVEMENT AGREEMEPlT DATE OF AGREEMENT: June 2, 2009 NAME OF DEVELOPER: Fountainhead indio LP (referred to as"DEVEL,OPER"}. NAME OF DEVELOPMENT: Firestone Tire Store (referred to as "DEVELOPMENT"). DEVELOPMENT RESOLUTiON OF APPROVAL NO.: Resolution PP 07-'13, CUP 07-16 {referred to as "Resolution of Appraval"} iMPROVEMENT PLANS NO.: {refeRed to as "Improvement Plans"). ESTIMATED TOTAL COST OF IMPROVEMENTS: $25,098.00 SURETY: i�l U'�I�'h �'C'1�'1Q{'`�C�r� SQQc:�� :�S�J�f G� C v . LETTER �F CREDiT/BOND NOS.: �-��Il��l2— This Agreement is made and entered into by and between the City of Palm Desert, a municipal corpora#ion of the State of California, hereinafter referred to as "CITY", and the DEVELOPER. RECITALS A. DEVELOPER has presented ta CITY for approval a Conditionai Use Permi�lPrecise P1an of Development pursuant to provisions of the CITY's ordinances and regulations relating to development approval. B. A Conditional Use Permit/Pr�cise Plan of Development has been approved, subject to the requir�ments and conditions contained in the RI�4PUB�VCD\i60 Resoiution of Appraval. The Resolution of Approval is on file in the Offiee of the Directar ofi Community Development and is incorporated into fihis Agreement by reference. � C. ]n consideration of the approval of a Conditianal Use Permit/Precise Plan of Development far the DEVELOPMENT by the Planning Commission, DEVELOPER desires to enter into this Agreement, whereby DEVELOPER promis�s to install and complete, at DEVELOPER's own expense, ali the public improvement work required by C1TY in connectian with the proposed DEVEL4PMENT. DEVELOPER has secured this Agreement by improvement security required by the City and approvecE by the City Attorney. D. Compiete improvement P[ans 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 fiile in the Off'sce of the City Engineer and are incorporated into this Agreement by this reference. All references in this Agreement to #he Impravement Pians shall inc(ude reference to any specifications for the impravements as appraved by the City Engineer. E. An estimate of the cast for construction of the public improvements and pertorming land development wark tn cannection with #he impravements according to �he Improvement Pians has been made and has been approved by the Ci#y Engineer. The es#imated amount is stated on Page 1 of this RI�LPL"BIVCAl760 Agreement. The basis for the estimate is on file in #he Office of the City Engineer and is incorporated into this agreement by reference. � F. CITY has adopted standards for the construction and installation of improvements within the CiTY. The lmprovement Plans have been prepared in conformance with CITY standards in effect on the date of the Resolution of Appraval_ NOW, THEREF�RE, in considera#ion of the approval of the DEVELOPMENT, DEVELOPER and CITY agree as follows: 1) DEVEL�PER's Qb{iqation to Construct Improvements. DEVEL4PER shall: (a) Comply with afl the requirements of the Resolution of Approvaf, and any amendments thereto. (b) Complete at DEVELOPER's own expense, all the public improvemen# worK required by the Resalution of Approval irt cor�formance with approved lmprovement 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 lmprovemen# Plans. (d) Acquire, or pay the cost of acquisition by CITY, and dedicate all rights- of-way, easements and other infierests in real property for construction and instaf(ation of the public improvements, free and clear of ali liens and encumbrances. The DEVELOPER's obligations with regard fio acquisition by CITY of off-site rights-of-way, easements and other interests in real prope�ty shall be subject to a separate agreement between DEVELOPER and CI?'Y. RMI'tR3�VCD1760 DEVELOPER sha(I alsa be responsible far obtaining any public or private sanitary sewer, domestic water, drainage, and/or utility easements or - authorization to accommodate the DEVELOPMENT. (e) Commence canstruction of the improvements by the time established in Section (21} of this Agreement and camplete 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 develapment wark corttempfated by this Agreement is to be constructed or installed on land not owned by CITY or DEVELOPER, no construction or instailation shall be commenced before: (a) The offer of dedication to CITY of apprapriate rights-of-way, easements or other interests in real property, and appropriate authorization from the property owner to allaw cortstructian or installation of the improvements or work, o� (b) The dedieation #o, and acceptance by, CITY of appropriate rights-of- way, easements or ather interests ir� real property, as determineci by the City Engineer, or (c) The issuance by a court af competent jurisdiction pursuant to the State Eminent Domain Law af an arder of possession. DEVELQPER shall comply in all respects with the order of possession. R2�fi'[JB1VC➢1760 Nothing in this Section (2) shail be canstrued as authorizing or granting an extension of time ta DEVELOPER. 3) Security. DEVELOPER shafl at all times guarantee DEVELOPER's performance by fumishing to C1TY, and maintaining, good and sufficient security as required on forms approved by CITY for the purpases and in the amounts as follows: (a) ta assure faithful performance of this Agreement in regard to said improvements in an amount of 100% of the estimated cost of the impravements; and {b) to secure payment to any contractor, subcontractor, persons renting equipment, or fumishing labor and materiais for the impravements required to be constructed and installed pursuant to t�is Agreement in the additional amount of 50% of the esfiimated cost of the improvements; and The securities required by this Agreement shall be kept on fle with the City Clerk. The terms of the security documents referenced on page 1 of this Agreement are incorparated into fihis Agreement by this reference. If any security is replaced by another approved security, the replacement shall: 1) compfy with ail #he requirements for security in this Agreement; 2) be provided to the City Engineer ta be fled with the City Clerk and, upon filing, 3} shall be desmed to have been made a part of and incorporated inta this Agreement. lJpon provision af a repiacement security with the City Engineer and filing of a replacement security with the City Clerk, the former security may be released. RMYtJB}VCA17G0 4) Alterations to Impravement Plans. (a) Any changes, alterations or additions to the Improvement P(ans not exceeding �en percent (1Q%} of the original estimated cost of the improvements, which are mutually agreed upon by CITY and DEVELOPER, shall nat relieve the improvement security given for faithful perFormance o# this Agreement. 1n the svent such changes, a{terations, or additions exceed 10°/o of the original estimated cast af the improvement, DEVELOPER shall provicie improvement security for faithfuf pertormance as required by Section (3) of this Agreement for one hundred percent ('l00°/o) of the total estimated cost of the improvements as changed, altered, or arnended, minus any completed partial releases allowed by Section (6} of this Agreement. (b) The DEVEL4PER s�ail canstruct the improvements in accardance with CITY standards in effect afi the time of adoption of the Resolution of Approval. CiTY reserves the right to madify the standards applicable to the DEVELQPMENT artd this Agreement, when necessary to protect the public safety or welfare or comply with applicable state or federaf law or C1TY zoning ordinances. If DEVELOPER requests and is granted an extension o# time for completion of the impravements, C1TY may apply the standards in effect at the time of the extension. b) Inspection. DEVELOPER shali at all times maintain proper fiaci(ities and safe access fior inspection of the public improvements by CITY inspectors and to the shops wherein any work is in preparation. Upon completion of the work, DEVE.LOPER may request a final inspection by the City Engineer, or the City Rn�crB�vcnaeo Engineer's authorized representative. If the City Engineer, or the designated representative, determines that the work has been comp{eted in accordance wifih this - Agreement, then the City Engineer shall cer�ify the comple#ion of the public impravements to the City Council. No improvements shall be finally accepted unless ail aspects of the work have been inspected and campleted in accordance with the Improvement P{ans. When applicable law requires an inspection to be made by City at a pafticular stage of the work ofi constructing and installing such impravements, C1TY shafl be given timely notice of DEVELOPER's readiness for such inspection and DEVEL4PER shail not praceed with additional work until the inspection has been made and the work approved. DEVE��PER shall bear a!I costs of inspection and cer�ification. Na improvements shail be deemed completed until accepted pursuant to Sectiort (16} herein. 6) Re(ease of Securities. T�e securities required by this Agreement shall be released as following: (a7 Security given for faithful performance of arty act, obligation, work ar agreement shall be released upon the finai completion and acceptance of the act or work, subject ta the provisions of subsection (b) hereof. (b) The Gity Engineer may release a portion of the security given for faithful performance of improvement work as the improvement progresses upon application thersof by the DEVELOPER; provided, however, that no such release shail be for an amount less than twenfy-five percent (25%} of the total improvement security given for faithfuf performance at the impravement work and tha# the security shaEl not be reduced to an amount {ess than fifty percent (5�%) of the total improvement security given for faithful per�ormance until final completion and acceptance of the improvement RMPCBIVCD�7G0 work. In na event shal! the City Engineer authorize a release of fihe improvement security which wauid reduce such security to an amount below ' that required to guarantee the complstion of the improvement work and any other obligation imposed by this Agreement. {c) Securifiy given to secure paymen# to the contractor, his or her subcantractors and to persons furnishing labor, materials or equipment shall, at six (6) months aftef campletion and acceptance of the work, be reduced to an amount equal to no iess than 125% of the total claimed by all claimants for whom liens have been fled and of which natice has been given to the CITY, plus an amount reasonably determined by the City Engineer to be required to assure the pertormance of any other obligations secured by the Security. The baiance of the security shall be released upan the settlement ofi all claims and obligations for which the security was given. {d) CITY may retain from any security released, an amount sufficient to cover costs and reasonable expenses and fees, including reasonable attorneys`fees. 7} Injury to Public Improvements, Public Property or Public Utilities Facilities. DEVELOPER sha�l replace or repair ar have replaced or repaired, as the case may be, ali public improvemertts, public u#ilities facilitiss and surveying or subdivision monuments which are destroyed or damaged as a result of any work under this Agreement. DEV�LOPER shall bear the entire cost of repiacement or repairs of any and alI public or pubiic uti#ity property damaged or destroyed by reason of any work done under this Agreement, whet�er such property is owned by the United States or any agency thereo#, or the State of Califiornia, or any agency or political subdivision thereof, or by ClTY or any public or private utility corporation or RMPtJB\VCD\760 by any combination of such awners. Any repair or replacement shafl be to the satisfaction, and subject ta the approval, of the City Engineer. 8) Permits. DEVELOPER shali, at DEVE�OPER's expense, obtain al( necessary permits and Iicenses for the construction and installatian of the improvements, give all necessary notices and pay all fess and taxes required by law. 9) Default of DEVELOPER. (a) Defiault of DEVELOPER shall include, but nat 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) D�VELOPER's failure to pertorm substantial construction work €or a period of twenty {2Q} calendar days after commencement of the work; (5} DEVELOPER's insolvency, appointment of a receiver, or the fifing of any petition in bankru�tcy either valuntary ar involuntary which DEVEL�PER fails to discharge within thirty (30) days; (6) the commencement of a foreclosure acfiion against the DEVE�OPMENT or a portion thereof, or any conveyance in lieu or in avaidance of foreclosure; or (7) DEVELOPER's failure to perform any other obligation under this Agreement. Ri�iPUB1VCD1�60 (b) CITY reserves to itself all remedies available #o 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 defauf# by DEVELOPER. The right of CITY to draw upon or utilize the security is additional to and not in lieu of any ather remedy avaiiable to CITY. It is specifically recognized that the estimated costs and security amounts may nat reflect the actuai cost of construction ar installation of the impravements and, therefore, C[TY's damages for DEVEL�PER's defau[# shafl be measured by the cost of compfeting the required improvements. The sums provided by the improvement security may be used by CITY for tYte completion of the public improvements in accordance with the improvement plans and specifications eontained her�in. (c} In the event of DEVELOPER's default under #his Agreement, DEVELOPER authorizes CITY to perform such obligation twenty (2Q) days after mailing writ#en notice of default ta DEVELOPER and to DEVELOPER's surefy, and agress to pay the entire cost of such perFormance by CfTY. ClTY 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 liabfe to CITY for any excess cost or damages occasioned CITY thereby. In such event, CITY, withaut liability for so doing, may take possession of, and utilize in eompleting the work, such materials, appliances, plants and other property belonging to DEVELOPER as may be on the site of the work and necessary for pertormance of the work. RD-fPU61VCD1760 (d) �ailure of DEVELOPER to comply wit� the terms of this Agreement shali constitute consent to the fiiing 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 subsectian (c) is in additian ta and nofi in iieu of other remedies availabfe #o CITY. DEVEL�PER agrees that the choice of remedy or remedies for DEVELOPER's breach sha11 be in the discretion of ClTY. (e) In the event fhat DEVELOPER fails to pertorm any obligation hereunder, DEVELOPER agrees to pay all costs and expenses incurred by CITY in securing pertormance of such obligations, including but not limi#ed to fees and charges af architec#s, engineers, attorneys, other professionals, and court costs. (fi} The failure ot CiTY to take an enforcem�nt action with respect to a default, or to declare a breach, shall nat be construed as a waiver of fihat default or breach or any subsequent defauft or breach ofi DEVEL4PER. �10} DEVELOPER Not Agent of CITY. Neither DEVELOPER nor any of DEVELOPER's agents, contractors or subcontractors are or shalf be considered to be agents of C1TY in connection wi#h the pertormance of DEVELOPER'S obEigations under this Agreement. (11) lniur'v to Work. Until such �ime as the improvements are accepted by CITY, DEVELOPER shall be responsible fior and bear the risk of loss to any of the improvements constructed or installed. Until such time as all improvements required by this Agr�ement are fully completed and accepted by CITY, DEVELOPER wiE! be responsible for the care, maintenance ofi, and any damage to such improvements. RMPiIfl\VCD1760 CITY shafl not, nor shall any officer or employee thereof, be liabie 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 impro�ements. Afl such risks shal[ be the responsibility of and are hereby assumed by DEVELQPER. (12} Environmental Warrantv. Prior to the acceptance of any dedications or improvements by CtTY, DEVELOPER shali certify and warrant that neither the property to be dedicated nor DEVELOPER is in viola#ion of any environmental law and neifher the property to be dedicated nor the DEVELOPER is subject to any existing, pending or threatened investigation by any federal, state or local govemmental autharity under or in connection with environmentaE law. Neither DEVELOPER nor any third pa�ty wilE use, generate, manufacture, produce, or release, an, under, or about the property to be dedicated, any [�azardous substance except in compliance with ail applicable environmental laws. DEVELQPER has not caused or permitted the re{ease of, and has na knowledge af the release ar presence of, any hazardous substance on the property to be dedicated or the migratian of any hazardous substance fram or to any other property adjacent to, or in the vicinity af, the property to be dedicated. DEVELOPER's prior and present use of #he praperty ta be dedicated has nat resulted in the release of any hazardous substance on the property ta be dedicated. DEVELOP�R shali give prompt written notice to CITY at the address set forth herein of: (a) Any proceeding or investigation by any federal, state or foca( govemmental authority with respect to the presence of any hazardaus substance on the praperty to be dedicated or the migra#ion thereof from or to RbfP[JBIVCD\760 . 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#he property to be dedicated relating to any loss or injury resulting from any hazardaus substance; and, (c) DEVELOPER's discovery of any occurrence or condition on arty property adjoining in the vicinity ofi the property to be dedicated that cauid cause the property to be dedicated or any part thereof to be subject to any restrietions on its ownershi�, occupancy, use for the purpose for which is it is intended, transferability ar suit under any environmental faw. {13} Other Aqreements. Nothing contained in this Agreement shall preclude CITY from expending monies pursuant to agreements concurrently or previausEy executed befinreen the parties, or from entering into agreements with other developers for #he apportionment of costs of water and sewer mains, or other improvements, pursuant to #he provisions of the CITY ordinances praviding therefore, nor shall anything in this Agreement commit CITY to any such apportionment. (14) DEVELOPER'S �bligation to Warn Public Durina Constructian. Untii formal final acceptance of the improvements, DEVELOPER shali give good and adequate warning ta the public of each and every dangerous condition existent in said impravements, and will take all reasonable actions to protect the pub(ic firom such dangerous condition. (15) Vestinq of Ownershiq. Upan formal finai acceptance of the work by C1TY and recordation of the Resalutian of Acceptance of Public lmprovements, I2MPIJB\VCD1764 ownership of the +mprovements constructed pursuant to this Agreement shall vest in CITY. - (16) Final Acceptance of Work. Accepfiance of the work on behalf of CITY shall be made by the City Council upon recommendation of the City Engineer after finai completion and inspectian of ail improvements. The City Council shall act upon the Engineer's recamm�ndation within sixty (60) days from the date the City Engineer certifies that the work has beert finalky completed, as provided in Section (6). Such acceptance shall not constitute a waiver of defects by CITY. {17) IndemnitvlHold Harmless. CITY or any officer or empfoyee thereof shail not be liabfe far any injury to persons or praperty occasioned by reasan of the acts or omissions of DEVELOPER, its agents, or employees, contractors and subcontractors in the pertarmance of this Agreement. DEVEL4PER further agrees to protect, defend, indemnify and hold harmlass CiTY, its officia{s, boards and commissions, and members thereof, agents ar�d empioyees from any and all claims, demands, causes of action, liability or loss of any sort, because of, or arising out of, acts or omissions o� DEVELOPER, its agents, employees, contractors and subcontractors in the pertormance of this Agreement, except for such claims, demands, causes of action, Iiability, or Eoss arising out of the sole active negligence of the CfTY, its officials, baards, commissions, the members thereof, agents, and empioyees, including all claims, demands, causes of action, liability, or loss because o�, or arising out of, in whole or in part, the design or construction af the improvements. This indemnification and agreement ta hold harmiess shall extend to injuries to persons and damages or taking af praperty resulting fram the design or construction of said DEVELOPMENT, and the pubiic improvements as provided herein, and in addition, to adjacent property owners as a consequsnce of the RA4PUI31VCD17G0 diversion of waters firom the design and construction of publie drainage systems, streets and other public improvements. Acceptance by C1TY of fihe improvements � shall not constitute an assumption by C1TY of any responsibility for any damage or taking covered by this Section. CITY shall not be respor�sible for the design ar construction of the property to be dedicated or #he improvemen#s pursuant to the approved improvement plans ar map, regardless of any negligent action or inaction taken by ClTY in approving the plans ar map, unfess the particular improvement design was specificaEly required by CITY over written objectior� by DEVELOPER submitted to fhe City Engineer befare approvai of the particular improvement design, which objectian 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 rernain obligated to eliminate any defect in design or dangerous condition caused by the design or construction defect; however, DEVELOPER shall not be responsible for rou#ine maintenance. Provisions of t�is Section shall remain in fuil force and effect for ten (10) years foilawing the acceptance by GITY ofi the improvements. it is the intent of this Section that DEVELOPER st�af[ be responsible for all fiability for design and construction ofi the improvements installed or work done pursuant to this Agreement and that CITY shall not be iiable for any negfigence, nonfeasance, misfeasance or maifeasance in approving, reviewing, checking, or inspecting any worK or constr�€ction. The improvement security shall not be required to cover the pravisions of this Section. DEVELOPER shall reimburse CITY for al! costs and expenses (incEuding but not limited to fees and charges of a�chitects, engineers, a#tarneys, and other professionals, and court costs) incurred by CITY in en#orcing the provisions of this Section. Ri�fPLTB\VCD1760 (18) Personal Nature af DEVELOPER'S Obliqations. All af DEVELOP�R's obligations under this agreement are and shali remain the personal - obfigations 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 abligations under this Agreemen# to any transferee of a!i or any par# of the property within the DEVELOPMENT or to any other third party without the express written consent of CITY. (19) Sa(e or Disposition of DEVELOPMENT. Seiler or other DEVELOPER may request a novation of this Agreement and a substitution of security. Upon approval of the novation and substitutian 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 af the obligations under Section (17} for the work or improvement done by DEVELOPER. (20� Time of the Essence. Time is af the essence in the pertormance of this Agreement. (21} Time for Commencement of Work� Time Extensions. DEVEL�PER shall commence substantial construction ofi �he improvements required by this Agreement not later than six (6) months after the date of this Agreement. En the event gaod 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 nof exceeding a to#al of two {2) additiona{ years. The extension shali be executed in writing by the City Engineer. Ar�y such extension may be granted without notice to DEVELOPER's surety and shail nat affect the vafidity of this Agreement or refease #he surety or sureties an any security given for this Agreement. The City Engineer shali be the sole and fina!jucige as to whether ar IttvA'UBIVCD1760 not good cause has been shown to entitle DEVELOPER to an extension. Delay, other than delay in the cammencement of work, resulting from an act of ClTY, act of God, or by storm or inclement weather, strikes, boycotts or similar political acfions which prevents the conducting of work, which DEVELOPER could not have reasonably foreseen and, furthermare, were not caused by or contributed ta by DEVELOPER, shall constitute good cause for and extension of the time for completian. 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 amos�nt as necessary to campensate for any increase in construction costs as determined by the City Engineer. (22} No Vestinq of Riqhts. Performance by DEVELOPER of this Agreement shall not be construed to vest DEVEL.OPER's rights with respect to any change in any zoning or building law or ordinance. (23) Notices. A#I natices required or provided far under this Agreement shail be in writing and delivered in person or sent by maii, postage pr�paid 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 fo#laws �niess a written change of address is fled with the City: Notice to CITY: City of Palm Desert 73-510 Fred Waring Drive Pafm Desert, California 92260 Attn: Public Works Director Notice to DEVELOPER: Fountainhead fndia, LP 3636 Birch Street, Suite 270 Newpor� Beach, CA 92660 Attn_ Craig Smith Notice ta SURETY: RNLPUBIVCDUf+O {24) Compliance With Laws. DEVELOPER, its agents, emplayees, contractors and subcontractors shal( comply with all federai, state and local laws in the pertormance of the impravements and iand development work required by this Agreement. (25} Severability. The pravisions of this Agreement are severable. If any portion of this Agreement is held inva{id by a court of competen# jurisdiction, #he remaindar af the agreemen# sE�all remain in full force and effect unless amended or modified by the mutua! consent of the parties. (26) Captions. The captions of this Agreement are for convenience and re#erence only and shal! not deftne, explain, modify, limit, exemplify, or aid in the interpretation, construction or meaning of any provisions ofi this Agreement. (27) Li�iqation or Arbitration. In the event that suit or arbitratian is brought to enforce the terms of this Agreemen#, the prevailing party shall be entitled to iitigation costs and reasonab(e attorneys' fees. (28} Incarpora#ion of Recitals. The recitals to �his Agreement are hereby incorporated inta in the terms of this Agreement. (29) Entire Aqreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter. A(I modifications, amendments, ar waivers of the terms of this Agreement must be in writing and signed by the appropriate representatives of the parties. {30} Interpretation.This Agreement shall be interprefed in accordance with the laws of the State of California. (31) Juriscliction. Jurisdiction af all disputes over the #erms of this Agreement shall be in the County of Riverside, State of California. ��vcDow IN WITNESS WHEREOF, this Agreement is executed by the parties as of the date hereinabove first written; by CiTY, by and through its Mayor. - FOUNTAINHEAD INDIQ, LP CITY�F PALM DESERT A California limited partnership By: FH Develapment, LLC A �elaware limited liability company Its General Partner By: C�'aig Smi , anager MAYOR (Proper Notarization of DEVELOPER's signature is required and shall be at#ached) ATT�ST: CITY CLERK APPR�VED AS TO �ORM: CITY ATTORNEY ItIvfPUB\VCDV 60 Acknowledgement State of California County of DY'd..rt� On h8 �- Zo� O 1 before me, J�i QI�Y� ��f'Q-y1�.o Notary Public, personally appeared CrOw S�' i�n , who proved fio me on the basis of satisfactory evidence to be the persan�whose name�(s'f isfa�asubscribed to the within instrument and acknowledged to me that h��;executed the same in his{�er¢t�k►ei�.authorized capacity�ies7, and that by his,"-�:,�-�.- ':.".��signature�'j an the instrument the personS,s�j, or the entity upon behaEf of which the person�acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and ofFicial seal. �=.^. SHERI ANN FRANC� ^ � a _"'y—�g��`" COMMISSfON#1757643 p Z ' �� Notary Public-Caiitomia z U � ��,,,��f '�l t�r� ORANGE COUNTY � � Signature """"r'w MyGomm ExpiresJuly19,2017 78-018 COUNTRY CL UB J O� 4 tt; 4 � � �.. ��'' �. � � w-z a v h � � � � �ARR�S �.,IN � G�O�Yfi D�,� LOCATOR MAP �"'� ,� 78-018 COUNTRY CLUB � ,��- � Parcels � � ' . � `��, � � City Boundary e 'Py,,�c� :• ��,� DAT E: �o�A ° 1 1/2nn9 1 inr.h = �Fi(1 faet vi�i t�i i-ry nn A n