HomeMy WebLinkAboutRelease Security CUP 04-12 The Living Desert - Administrative Bldg CITY OF PALM DESERT �....,
PUBLIC WORKS DEPARTMENT
STAFF REPORT
REQUEST: Release Performance Security in the amount of $7,388 for CUP 04-12
(The Living Desert Administration Building)
SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works
APPLICANT: The Living Desert CITY COUNCILACTI4N
47-900 Portola Avenue APPROVED f DENiED
Palm Desert, CA 92260 RECEIVED OTHER
DATE: January 22, 2009 MEETING DAT� �-
AYE3s '
CONTENTS: Agreement NOE&
ABSENI� �
ABSTAII�it
v�n
Recommendation: tki�loNtFiM�tR��
By Minute Motion, authorize the City Clerk to release the Performance
security in the amount of$7,388 for CUP 04-12.
Discussion:
At the time of permit issuance, The Living Desert submitted a cash deposit in the amount of
$7,388 for grading and offsite improvements for the Administration building located at
47-900 Portola Avenue. All improvements have been satisfactorily completed at this time. A
maintenance bond is not required because of the minor nature of the improvements.
Therefore, staff recommends that City Council accept the work as complete, and release
the corresponding security.
Prepared By: Depa ead:
�' . r��,,.
Christina Canales Mark Green ood, P.E.
Assistant Engineer Director of Public Works
Approy>al: �,
,
',,� ,' ,
`!�J'���2 L "✓'��`' !i
Homer Croy sti McCarthy
ACM for Dev�iopment Services Interi City Mana r
/cc
GFtAD1NG ONLY AGREEMENT
DATE �F AGREEMENT: �� G �- /a , 2Q D(�.
NAME OF OWNER/DEVELOPER /i�� ��vi�v ' .�� �' �-{.-'�
2
(referred to as "GRADER"}.
PROPERTY (MAP AND PARCEL N4.): No. af Lots:
(referred to as "PR4PERTY").
GRADING PLANS APPROVED ON:
(referred to as"GRADING PLANS").
ESTIMATED TOTAL COST OF GRADING:$ L�P, y7Z .bt� _ _
SURETY:
B(?ND NOS:
SURETY: �
-QR-
IRREVOCABLE STAND-BY LETTER OF CREDIT N�.
FINANCIAL INSTITUTIQN:
-OR-
C S ERTIFICATE O� DEPOSlT, AGREEMENT DATED: ���/d�_
FINANCIAL INSTlTUTION:
This Agreement is made and entered into by and between the City of Palm Desert,a
municipal corporation of the S#ate of California, hereinafter referrsd to as "CfTY", and the
GRADER.
RECITALS
A. in consideration of the approval af the Grading Plans fac the PR4PERTY by
the City Council, GRADER desires #o enter into this Agreement, whereby GRADER
promises to complete, at GRADER's own expertse,all the grading work required by CITY in
connection with the praposed PROPERTY. GRADER has secur�d this Agreement by
grading security required by the City and approved by the City Attarney.
-1-
C:\DOciunents and Settings\Robert.Harg=eaves\My i)ocuments\PALM DESERT - Grading Ag=eement.doc �
B. GRAD(NG PLANS for the grading of the PRC?PERTY have been prepared by
GRADER and approvad by the Ci#y Engineer. The GRADING PLANS numbered as
referenced previously in this Agreement are on file in the O�ce ofi the City Engineer and
are incorporated into this Agreement by this reference. A!I references in this Agreement to
the GRADING PLANS shall include reference to any specifcations fiar the impro�ements
as approved by the City Engineer.
C. An�stimate of the cost for grading and performing�and development work in
connection with the grading accarding#o the GRADING PLANS has been macfe and has
been approved by the City Engine�r. The es#imated amount is stated on Page 1 of this
Agreement. The basis for the es#imate is aftached as Exhibit"A"to this Agreement.
D. C1TY has adopted standards for the grading of praperty within the CiTY. The
GRADlNG PLANS have be�n prepared in canformance with CtTY s#andards in effect on
the date of the appraval.
E. GRADER recognizes that CfTY and adjacent properties may be damaged by
GRADER's failure to perform its obligations to complete approved grading by the time
es#ablished in fihis Agreement. CtTY shall be en�itled to ali remedies available to it
pursuant to this Agreement and law in the event of a default by GRADER.
NOVif,THEREFORE, in consideration of the approval by the City of the GRADiNG
PLANS, GRADER and CITY agree as follows:
(1) GRADER's Obli�ation to Compiete Gradinq.
GRADER shall: .
_2_
C:\Documents and Settings\Robert.Hargreaves\My Aocuments\PALM D�SERT - Grading Agreement.doc �
(a} Complete at GRADER`s own expense, a#I the grading required by the
Approva! in conformance with approved GRADING PLANS within one year from dafie of
execution of#his Agreement; provided howeve�,that the grading shall not be deemed to be
completed until approved by City Engineer as provided in Section 4 herein.
(2) Seeuri .
GRADER shall at ali times guarantee GRADER's perfarmance by fumishing to
CITY, and maintaining, good and suf#icient security as required by the C1TY on forms
approved by CITY fior the purposes and in the amounts as follows:
(a) ta assure faithful performance of this Agreement in regard to said
grading in an amount of 25% of the estimated cost ofi the grading.
The securities required by this Agreement shatl be kept on fiie with the City Clerk.
The terms of the security dacuments referenced on page 1 of fihis Agreement are
incorporated into this Agreement by this reference. If any security is replaced by another
approved security,the replacement shaA: 'f)comply with all the requirements for security in
this Agreement; 2) be provided to #he City Engineer to be filed with the City Clerk and,
upon filing, 3) shall be deemed to have been made a part af and incorporated in#o this
Agreement. Upon provision of a replacement security with the City Engineer and filing of a
replacement securi#y with the City Clerk, fihe former security may be released.
-3-
C:\Documents and Settings\Robert.Hargreaves\My Documents\PALM DESERT - Gzading Aqreement.doc „
(3) Alterations to GRADING PLANS.
{a) Any changes, alterafions or additions to the GRADtNG PLANS not
exceeding ten percent(10%)of the original estimated eost of the improvements,which are
mutually agreed upon by CITY and GRADER, shall not relieve the improvement security
given for faithful performance of this Agreement. In the event such changes,alterations,or
addi#ions exceed 1 d% of#he original est'tmated cost of the improvement, GRADER shall
provide grading security far faithful performance as required by Sectson (3) of this
Agreement for twenty-five percent (25%} of the tota! �stimated cast of the grading as
changed, aitered, or amended, minus any completed partial releases allawed by Section
(6} o€this Agreement.
(b} The GRADER shal! complete the grading in accordance with CITY
standards in effect at#he time of approval of GRADING PLANS. CtTY reserves the right#o
modify the standards applicable to the PROPERTY and this Agreement,when necessary
to pro#sct the public safety or welfare or comply with ap�licabie state or federal{aw or CITY
zoning orciinances. !# GRADER requests and is granted an extension of time for
completion of the grading, CITY may appiy #he standards in effect at the time of the
extensian.
(4) Inspection. GRADER shall at all times maintain proper facilities and safe
access for inspection of the grading by CITY inspectors. Upon campletion of the woric,
GRADER may request a final inspection by the City Engineer, ar the Ci#y Engineer's
authoriaed representative. If the City Engineer, or the d�signated representafive,
deterrnines that the work has been completed in accordance with tFtis Agreement,then the
City Engineer shali certify the completion of the grading. When applicab{e 1aw requires an
—d—
C:\Documents and Settings\Robert.Hargreaves\My DOCuments\2ALM DESERT - Grading Agreement.doc r
inspection ta be made by City at a particular stage of the grading, CITY shall be given
timely notice of GRADER's readiness for such insp�ctian and GRADER shall nat proceed
wi#h additionat work ur►til the inspect�on has been made and the work approved. GRADER
shall bear all costs of inspection and ce�ification.
(5) Release of Securifies. The securities required by this Agreement shall be
released as€ollowir�g:
(a) Security given far faithful performance of any act, obligation, work or
agreament shalf be reieased upan the fi�al completion and approved of the act or work.
{6) Iniury to Pubiic Improvernents Public Propertv or Public Utilities Facilities.
GRADER shall replace or repair or have replaced or repaired, as the case may be, ail
public improvernents, public utifities facilities and surveying or property monuments which
are destroyed or damaged as a result of any work under this Agreement. GRADER shall
bear the entire cost of replacement or repairs of any and ali public or pub[ic utility property
damaged or destrayed by reason of any work done under this Agreement, whether such
property is owned by the United States or any agency thereofi, ar the State af California, or
any agency or political subdivisian thereof, or by CITY o� any public or priva#e utility
corporation or by any combination of such owners. Any repair or replacement shall be to
the satisfactfan, and subject to the approval, of#he City Engineer.
(7) Permits. GRADER shall, at GRADER's expense, obtain afl necessary
permits and licenses far the grading,give all necessary notices and pay all fees and taxes
required by law.
(8) Default of GRADER.
(a) Default of GRADER shalf include, but not be limited to,
-s-
C:\Documents and Settings\Robert.Hargreaves\My Documents\PALM DESERT - Grading Agreement.doc �,
(1) GRADER's failure to timely commence the grading;
{2) GRADER's fiailure to time�y comp{ete grading;
(3) GRADER's failure to timely cure any defect in the grading;
{4}GRADER`s failure to pertorm subs�antial work for a period of twenty
{20) cafendar days after commencement of#he work;
(5) GRADER's insolvency, appointment of a receiver, or the�ling of
any petition in bankruptcy either voluntary or involuntary which GRADER#ails to discharge
within thirty (30) days;
(6)the commencemenfi af a foreckasure ac�ibn agairtst the PROPERN
or a portion thereof, or any con�eyance in lieu or in avoidance of foreclosure; or
(7) GRADER's failure to perform any a#her obtigation under this
Agreement.
(b) CITY reserves to itself all remedies available to it at law or in equity for
breach of GRADER's abligations under this Agreement. C1TY shall have the right, subject
to this Sectian,to draw upon or uti{ize the apprapriate security to mitigate CITY's damages
in event of default by GRADER. The right of CITY to draw upon or utifi�e the securiiy is
additiona! to and not in lieu of any ather remedy available to C1TY. tt is specifically
recognized that the estimated costs and security amounts may not reflect the actual cast of
grading and, therefore, C1TY's damages for GRADER's default shall be measured by the
cost of completing the required grading. The sums provided by the securi#y may be used
by CITY for the completion af the grading in accordance wi�h the GRADING PLANS
contained herein.
-6-
C:\Documents and Settings\Robert.Hargreaves\My Documents\PALM DESERT - Grading Agreement.doc „
In the event of GRADER's default under th9s Agreement,GRADER authorizes CITY
to perform such obligation twenty (�D) days after mailing written notice of default to
GRADER and to GRADER's surety, and agrees to pay the entire cost of such
performance by CiTY.
CITY may take over the work and prasecu#e the same to completion, by contract or
by any o#her method CITY may deem advisable, far the account and at the expense of
�RADER, and GRADER's surety sha{I be liable to C1TY for any excess cost or damages
occasioned CIT1( thereby. In such event, CITY, without liabi{ify for so doing, may take
possessian of, and utilize in comp{eting the work, such materials, appliances, plants and
o#her proper#y belonging to GRADER as may be on the si#e of�he woric and necessary for
performance af the work.
(c) Faifure of GFiADER to comply with the terms of this Agreemerrt shall
canstitute cansent ta the filing by CITY of notice of violation against the PROP�RTY. The
remedy provided by thi� subsection (c) is in additian to and nat in lieu ofi ather remedies
available#o ClTY. GRADER agrees that the chaice of remedy or remedies for GRArDER's
breach shalf be in the discretion of CITY.
(d) tn the event that GRADER fails to perform any obligation hereunder,
GRADER agrees to pay ali costs and expens�s incurred by CtTY in securing performance
of such obligations, including but not iimited to fees and charges of engineers, attomeys,
other professionals, and court costs.
(e) The failure of CITY to take an enforcement action with respect to a
default, or ta declare a breach, s#�a(I nat be construed as a waiver of thafi defauft or breach
or any subsequent default or breach of GRADER.
-7-
C:\Aocuments and 5ettings\�obert.Hargreaves\My Documents\1'ALM IIESEl2T - Grading Agreement.doc �
(9) GRADER Not Agent of ClTY. Neither GRADER nor any of GRADER's
agents, cantractors or su�contractors are or shal! be considered to be agents of CITY in
cat�nection with tt�e performance of GRADER'S obligations under#his Agreement.
(10} indemnitv/Hold Harmless. CITY or any officer or emplayee thereaf shall not
be tiable for any injury to persons or property accasioned by reason of the acts or
omissions of GRADER, its agents, or employees, contractors and subcontractars in the
performance of this Agreement. GRADER further agrees to protect,defend,indemnify and
hold harmless CfTY, i#s o�cials, baards and cammissions, and members thereof, agents
and emp{oyees#rom any and all claims, demands, causes of action, liability vr loss of any
sort, because of, or arising aut o#, ac#s or omissions of GRADER, its agents, employees,
cantractors and subcontractors in the �ertormance of this Agreement, except for such
claims,demands, causes af action, liability, or loss arising out of the sofe active negligence
of the CtTY, its officials, boards, commissions, #he members fihereof, agents, and
empioyees, including all ciaims, demands, causes of action, IiabilEty,or loss because of,or
arising out of, in whole ar in part, the design or constructian of the improvements. This
indemnification and agreement#o hold harmless shalt extend ta injuries to persons and
damages or tak�ng of praperty resuiting from the grading of the PR�PERTY, and in
addition,to adjacent property owners. Approval by CITY of the grading shall not constitute
an assumption by CITY of any responsibility for any r�amage or takmg covered by #his
Sec#ion. CfTY shall not be responsible for#he performance of grading, regardiess of any
negligent actian or inaction taken by CITY in approving the plans, unless the particular
design was specificalfy required by C1TY aver written objection by GRADER submitted to
the City Engineer before approvai ofi the par#icular grading design, which abjection
-8-
C:\Documents and Settings\Robert.Harg=eaves�My Documents\PALM DESERT - Grading Ayreement.doc ,,
indicated that the particular grading design was dangerous or defective and suggested an
alternative safe ar�d feasible design.
GRADER shall reimburse CITY for all costs and expenses(including but not iimited
to fees and charges of architects,engineers, attarneys, and other prafessionals, and court
costs) incurred by C1TY in enforcing the provisions of this Section.
(11) Personal Nature of GRADER'S Obliqations. AfI of GRADER's obligations
under this agreemen# are and shall remain the personal obligations of GRADER
notwithstanding a transfer of a1l or any part af the property subject to this Agreement, and
GRADER shall not be ent9tled to assign its obligations under this Agreement to any
transferee of all or any part of the property within the PR�PERTY or to any other #hird
party without the express written consent of C1TY.
(12) Sale or Disposition of PROPERTY. GRADER may request a novation of this
Agreement and a substitution of security. Upon approval of the novation and substitutian
of securities,the GRADER may request a release ar reduction of the securities required by
this Agreemen#. Nothing in the novation shall relieve the GRADER of the obiigations under
Section (18} for the work or improvement dane by GRADER.
(13) Time of the Essence. Time is of the essence in the pertormance of this
Agreement,
(14) Time for Commencement of Work; Time Extensions. GRADER shall
cammence substantial grading required by#his Agreement not later thart six (6) manths
after the date of this Agreement. I n the event good cause exists as determined by the City
Engineer,the time for commencement of grading hereunder may be ext�nded for a period
or periods not exceeding a total of two (2) additiona{ years. The extension shaN be
-9-
C:\Documents and Settings\Robert.Hargreaves\My Documents\PALM DESERT -- Grading Agreement.doc r
executed in writing by the City Engineer. Any suct� extensian may be granted witho�t
notice to GRADER's surety and shall not affect the validity of this Agreement or release the
surety or sureties on any security given for this Agreement. The City Engineer shall be the
sols and final judge as to whether or not good cause has been shown to entitle GRADER
to an extension. Delay, other than delay in the commencement of work, resulting from an
act of CITY, act of God, or by storm or inclement weather, strikes, boycotts or simiiar
political actions which prevents the conducting of work, which GRADER could not have
reasanabty foreseen and,furthermore,were not caused by ar contributed to by GRADER,
shall constitute good cause for and extension of the time for campietion. As a condition of
such extension, the City Engineer may require GRADER to furnish new security
guaranteeing performance of fihis Agreement as extended in an increased amount as
necessary#o compensate for any increase in construction costs as determined by the City
Engineer.
(15) No Vestinq of Ri_qhts. Performance by GRADER o#this Agreement shalf not
be construed to vest GRADER's rights with respect to any change in any zoning or building
law or ordinance.
(16) Notices. All notices required or provided for under tt�is Agreement shall be in
writing and delivered in person or sent by mail, postage prepaid and addressed as
provided in this Section. Notice shall be effective on the c�ate it is delivered in person, or, if
mailed, on the date of deposit in the United States mail. Notices shall be addressed as
foilows unless a written change ofi address is filed with the City:
-10-
C:\Documents and Settings\fZobert.Hargreaves\My Documents�PALM DESERT - Grad�.nq Agreement.doc ,
Notice to CIT1': City of Palm Desert
73-51 Q Fred Waring Drive
Palm Desert, California 92260
Attn: Public Works Director
Notice to GRADER:
Notice to SURETY:
(17} Compliance With Laws. GRADER, its agents,employees,contractors and
subcontractars shail comply with a{I federal, state and local laws in the performance of the
grading required by this Agreement.
(18) Severabifiiv. The provisions of this Agreement are severable. If any portion
of this Agreemen#is held invalid by a caurt of competent jurisdiction, the remainder of the
agreemen#shall remain in full force and effect unless amended or rnodifed by the mutual
consent of the parties.
(19) Cap#ions. The captions of this Agreement are for convenience and reference
only and shal{ not define, explain, modify, limit, exemplify, or aid in the interpretation,
construct'ton or meaning of any provisions of this Agreement.
(20) Litigation or Arbitration. In the event #hat suit or arbitration is brought to
enforce the terms of this Agreement,the prevailing party shall be entitled to litigation costs
and reasonable attorneys`fees.
-11-
C:\Documents and Settings\Robert.Hargreaves\My Documents\pALM DESERT - Grading Agreement.doc ,
(21) Incorporation, of Reci#ais. The recitals to this Agreement are hereby
incorporated inta in the terms of this Agreement.
(22) Entire Aqreement. This Agreement eonsfiifiutes the entire agreemenfi of the
parties with respect to the subjec#matter. All modifications, amendments,or waivers of the
terms of this Agreement must be in writing and signed by the appropriate representatives
of the parties.
(23) Interpretatian. This Agreement shall be in#erpreted in accordance with the
laws of the State of California.
(24} .lurisdiction. Jurisdiction of afl disputes over the terms of this Agreement
sha[I be in the County of Riverside, State of Califamia.
IN WITNESS WHEREOF,this Agreement is executed by the parties as of the date
hereinabove first written; by CITY, by and through its Mayor.
GZ�G1t C(TY�� PALM DESERT
GRADER
GY.�LG� �yc2f9,�Z�-.--�
By:
GRADER MAYOR
(Proper Notarizatian of
GRADER's signature is
required and shalf be attachedy
-12-
C:\Documents and Settings\Robert.Harqreaves\My Documents\PALM DESERT - Grading Agreement.doc „
ATTEST:
CiTY CLERK
APPROVED AS TO F'ORM:
CITY ATTORNEY
-13-
C:\Documents and Settings\Robert.f3argreaves\My Documents\PAI,M DESERT - Grading Agreement.doc �
� f� �, a� � JfJ
� � Cy'TY OF PALM DESEI�T
�� . TREASU][�.ER'S �.ECEIPT FOR TRUST DEPQSIT
DATE ��� �Z L D C�J AMOUNT � .
DEPOSITOR'S NAME L I �
REASON FOR DEPOSTT 1 t r �''
�
RECEIVED BY C•('���Q�/�
ACC�UNT NUMBER(circle one):
610-0000-228-XX-00
QT Deposit in Lieu of Bond 13 Rent Review Commission 2� TUMF
02 MonumenEation 14 Candidates Deposit 26
03 Curb and Gutter 15 Mitigation Fringe Lizard 27
04 Gxading Bond 16 Special Bven#s 28
05 Demolition Bond 27 Children's Choir 29
06 Faithfixl Performance Bond 1$ 30 Acquisition of Property
Misc.One-�'ime DeposiE 19 31
Q8 Filzning Pex�nzt 20 32
Q9 Parkizlg Authoxity Deposit 21 33 Pubizc Pacility Use
10 Sun Bus Passes 22 34 Employee Donafions
1T Landscape Symposzum 23 Median Const/Landscape 35 DSUSD School Impact
12 Sheriff FingerprinEs 24 Art Essay Contest 5010 Communzty Walk
I5 TH�DEPOSIT REFUNDABLE? YES � NO
CONDITTONS TO BE MET BEFORE REFUNDING DEPOSIT?
�T rn�c� Q /r�e_i�a� b��p ,171 t' �)�r�S De a`7t-.
AMOUNT REFUNDABLE_�, "�_,3�,�'•� DATE TO BE REFUNDED
MAIL REPUND TO: r�r V I D �Q,Ir'-�' .
r+d I c� �ver.l�ye
�2Z
- - - - - _ _ _ _ _
^ � � �INANCE DEPARTMEIVT USE�NLY ^
DATE REFUNDED CHBCK NO. AMOUNT
NOTE:ATTACH TAPE SHOWING CALCUL,ATION QF INTEREST EARNED,IF ANY.
�pPr: GR Tvae: AL ➢rawer: 1
7D�� TRUST��EP�I��Receint na�97388.�0
Tran� nu�her: 229677
� CK C}�CK 55127 510988,@0
7ran5 date: 81l7/06 Tioe: 14:49:s4
WH'I'-PAYOR CRN-T[iUSTACC7' CAN-ACCOUIVT[NC P1NK-NUM.CON'I'ROL G.ROD-iSSUlNGDE['T. �