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Home My WebLink AboutT34391 - Replacement Subdivision Improvement Agmt - KB Home SA � � � CITY OF PALM DESERT PUBLIC WORKS DEPARTMENT STAFF REPORT REQUEST: RELEASE THE SECURITY FOR TRACT 34391 (KINGSTON COURT), ACCEPT REPLACEMENT SECURITY, AND AUTHORIZE THE MAYOR TO EXECUTE THE REPLACEMENT SUBDIVISION IIMPROVEMENT AGREEMENT SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works � FORMER Palm Desert Terracina, LLC APPLICANTS: 13117 Quate Court, Ste. A Poway, CA 92064 Insurance Company of the West c/o Barney & Barney 9171 Towne Centre Drive, Ste.200 San Diego, CA 92186 NEW APPLICANT: KB Home Southern California 36310 Inland Valley Drive Wildomar, CA �t�"j�� --'�5 i i The Continental Insurance Company c/o Maria Pena AON Construction Services Group Aon Risk Insurance Services West, Inc. 707 Wilshire Blvd., Suite 2600 Los Angeles, CA 90017 BOND NUMBERS: 2175231, 2175232, 58673025 DATE: April 22, 2010 CONTENTS: Bond Agreement Vicinity Map Recommendation By Minute Motion, release the previous security for Tract 34391 (Kingston Court), accept replacement bonds, and authorize the Mayor to execute the replacement Subdivision Improvement Agreement. Staff Report Release Security for Tract 34391 (Kingston Court) and Accept Replacement Security April 22, 2010 Page 2 of 2 Backqround Kingston Court is located on Shepherd Lane west of Portola Avenue. At the time of permit issuance, performance security in the total amount of $648,636 was posted with the City for grading and off-site improvements. Rough grading was completed by the owner, Palm Desert Terracina, LLC, prior to the company falling into bankruptcy. KB Home Southern California has purchased Tract 34391. They have submitted a replaclement Subdivision Improvement Agreement and bonds in the total amount of $584,937 for the remaining grading and street improvements. Therefore, staff requests approval to release the performance security from Palm Desert Terracina, accept the perFormance security from KB Home Southern California, and authorize the Mayor to execute the replacement Subdivision Improvement Agreement. Fiscal Analvsis There is no fiscal impact associated with this action. Prepared By: Department Head: � � `'" �'J ,� � Christina Canales, Assistant Engineer Mark Greenwood, P.E., Director of Public Works CITY COUNCILACTION Director of Finance APPROVF.D ✓ DT?NiTD Paul S. ibson, RECEIVED OTHER MEETING DATE `�-�a-��d Ap � � AYES: ��,�� -��, S,D�ea�l, Giner-�y f � NOES: Slt�� ABSENT: F_e�_LSL]�L1 ABSTAIN: oh M. Wohlmuth, City Manager VF,RIFIED I3Y: Original on File with City Clerk's ftice ClTY OF PAtM DESERT STANDARD F4RM SUB�{VIStON FAITNFUL PERFORMANCE BOND NAME OF SUBDtVISION: Kingston NAME aF SUB�tVIDER: KB HOP,�E Coastal inc. NAME OF SURETY: The Continental Insurance Companv EFFECTNE DATE: April 2, 20�0 - AMOUNT OF B�ND: $389,9�s.00 BOND NUMBER: 58673025 PREMIUM: ��,950.00 KNOW' ALL MEN BY THES� PRESENTS: That the person, firm, '� � corporation, entity, or otherwise, namecE on line 2 abave, without regard to� .. gender and number, hereinafter ��ferred to� as PRiNClPAL, arrd the corporation named on Line 3 above, a corparation authorized to do business in the State of California ar�d presently possessed of authority under Title 6 af the United States Code to do business under Sections 6 to 13 thereof, in #he aggregate amounts hereof, hereinafter referred to as SURETY, are jointly and severally he[d and firmly bound unto tt�e City of Palm Deser�, a municipaE corporation of the State of California, hereinafter referred to as CITY, in the sum mentioned on Line 6 above, for the faithful performar�ce of that certain SUBDlVISEON IMPROVEMENT AGREEMENT between PRINClPAL and CITY regarding the subdivision named on Line 1 above, as required by the provision of the Subdivision Map Act and CITY ordinances, resolutions, rules, and regulations, for the payment of whicl� sums well and truly to be made, PRlNC1PAL and SURETY he�eby bind themselves, their heirs, adminis�rators, executors, successors and assigns, joir�tly a�d severally, firmly by these presents. The condEtion of the foregoing flbligation is such that if tt�e said PRINCIPAL shall faithfully perform the covenants, conditions, and agreements conta�ned in that ce►tain SUEDlV1S14N IMPROVEMENT ,�,GPEEMENT between PRINCIPAL and ClTY regarding the subdivision named on LINE 1 of Page 1 hereof, which said agreement is by this reference incarparated herein, on its �art to be kept and performed, in a manner and form therein specified, and shall fumish material in c�mpEiance with the speci�cations and perform ail tha# certain work and improveme�t in said CITY which is more particularly described in said SUBDfVISION EMPROVEMENT AGREEiViENT, then the obligation with respect to the faithful performance is by#his reference incorporated herein. � The said SURETY, for value received, hereby stipulates and agrees that : no cha�ge, extension of time, alteration or addition to the terms of the SUBDlVESION IMPROVEi1/�ENT AGREEMENT �r to the work to be perfarmed thereunder or the specifications accorripanying the same shall in anywise affect its obligations on this bond, and it d�es hereby waive notice of any such change, extension of time, alteration or addition #o the terms of the SUBDIVISION 1MPROVEMENT AGREEMENT, the work, the specifications o� any feature or item of performance thereunder. In the event it becomes necessary for CITY to bring an action to enforce this bond, SURETY shalt pay CfTY's reasonable attorney's fees and court costs in co�nection therewith. IN WITNESS WHEREOF, PRINCIPAL and SURETY have executed this instrument on the date mentioned on Line 4 of Page 1 hereof. KB HO Coas$al Inc. r ' / il l_' _ . i PRINCIPAL'S SIGNATURE /YI�CN�t6-c, ,1�. �'2�En,,q�J �"2 . PRINT NAME l/P �An/'D ,F- IG'o2�./A2l� f'�C.ANN/�G- TITLE & COMPANY NAME � PRINCIFA�'S SIGNATURE � � PR1t�IT NAME TITLE & COMPANY NAME The Continental Insurance Company SURETY'S SiGNATURE ,- ____...�...____ _ ___.___� . /"� �.....-..::�'v SURETY'S SIGNATURE Maria Pena, Attorney-in-Fact (Notarial acknowisdgement of execution by ALL PRINCIPALS and SURETY must be attached.} CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Riverside On A�ril 5, 2010 before me, Richard R. Keller, Notary Public, personally appeared Michael H. Freeman, Jr., who proved to me on the basis of satisfactory evidence to be the person(�) whose name(s) is/a�e subscribed to the within instrument and acknowledged to me that he/s�e� executed the same in his/�ei� authorized capacity(+es), and that by his/�ei� signature(s) on the instrument the person(�), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. � ��%�//� �. /�� .�� 4�.�,,,�.�a.�,��, a �.., �: � �tt �. �^�.� ��'[ � n``� � ;f'r ' `.ti i .. � � 6'� ' � "' 4 Richard R. Keller �j � �' � �,;, ,,,e ,_ � ', `�. :,s w^ _.- r r .. .. ¢ �i�,a.� � _.:2"3 '� �„,q^::.`� ��v .a�. , , � ,. "�i+�°-�,..'':� CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Los Angeles On April 2, zolo before me, Tracy Aston, Notary Public, personally appeared Maria Pena, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(�) is/a�e subscribed to the within instrument and acknowledged to me that �ie/she/� executed the same in #i-s/her/#�e+� authorized capacity(+e�), and that by #Es/her/�#e+� signature(�) on the instrument the person(�), or the entity upon behalf of which the person(�) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 1 ��.��, :�:� .,�� ,. .� �.m�_.�� P , T{,t'�...1 /e�,+�` a' � �. � y � / G�� `� �� Camrr IsslQn � 1 l3�r:�4 r� k_..��^,/ , ; ;%/ i� �i•Nor ;ry P�! i�c - C�a�ii, rn�a � J' d �- y ' ��`,�*�£ :�� l�� Ar� ��' s Cutirty �:. ,� �� }� � ��ry>> L�>> � Tracy Aston ��e��::-^�� .,��:a� �•u� ��s..�;�;�,��, POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY-IN-FACT Know All Men By These Presents,That The Continental Insurance Company,a South Carolina corporation,and Firemen's Insurance Company of Newark;New Jersey,a New Jersey corporation(herein called"the CIC Companies"),are duly organized and existing corporations having their principal �ffices in the City of Chicago,and State of Illinois,and that they do by virtue of the signatures and seals herein affixed hereby make,constitute and appoint Maria Pena, Edward C Spector, Lisa L Thornton, Tracy Aston, C K Nakamura, E S Albrecht, Jr, Tom Branigan, Clarice Lee,Marina Tapia,Joyce Herrin,Individually of Los Angeles,CA,their true and lawful Attorney(s)-in-Fact with full power and authority hereby conferred to sign,seal and execute for and on their behalf bonds,undertakings and other obligatory instruments of similar nature -In Unlimited Amounts- and to bind them thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of their corporarions and all the acts of said Attorney,pursuant to the authority hereby given is hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By-Law and Resolutions,printed on the reverse hereof,duly adopted,as indicated,by the Boazds of Directors of the corporations. In Witness Whereof,the CIC Companies have caused these presents to be signed by their Senior Vice President and their corporate seals to be hereto affixed on this 13th day of April,2004. �.•••� tir+tN The Continental Insurance Co an . L"••. c?......r e� � �P Y ��'�� • sl+o�:•''' ''.f�,! Firemen s Insurance Company of Newark,New Jersey �� ,: �; s; :" :v '� �a4� s�� ,.. .�.+� . �� +�i"� ►js�� ' ••��'••��''�� Michael Gengler Senior 'ce President State of Illinois,County of Cook,ss: On this 13th day of April,2004,before me personally came Michael Gengler to me known,who,being by me duly sworn,did depose and say: that he resides in the City of Chicago,State of Illinois;that he is a Senior Vice President of The Continental Insurance Company,a South Carolina corporation,and Firemen's Insurance Company of Newark,New Jersey,a New Jersey corporation described in and which executed the above instrument;that he knows the seals of said corporarions;that the seals affixed to the said instrument aze such corporate seals;that they were so�xed pursuant to authority given by the Boards of Directors of said corporations and that he signed his name thereto pursuant to like authoriry,and acknowledges same to be the act and deed of said corporations. OFFICIAL SEAL � ELIZA PRICE � I/��'� NOTARY WlBUC,BTATE OF M11NW8 MY COMMISSION FX//iEE:OYN7p0 My Commission Expires September 17,2006 Eliza Prioe Notary Public CERTIFICATE I,Mary A.Ribikawskis,Assistant Secretary of'fhe Continentai Insurance Company,a South Carolina corporation,and Firemen's Insurance Company of Newark,New Jersey,a New Jersey corporation do hereby certify that the Power of Attomey herein above set forth is still in force,and further certify that the By-Law and Resolurion of the Board of Directors of the corporations printed on the reverse hereof is still in force. In testimony wt�e�elo�I have hereunto subscribed my name and�xed the seal of the said corporations this 2 n d day of A p r i 1 , L ..••"�v.�� oM►ANl The Continental Insurance Company �. �'�� ';� '+o�:f''� `"��.�,s Firemen's Insurance Company ofNewark,New Jersey �� ti°: �: :: �z ,:b �'� _; �.. :U -+ �': �: '; _ :� "' �b �� "' /J �.��.N��t;.� ��..�..�;s�'�` �.C. Mary A. ika kis Assistant Secretary Form F6850-11/2001 Authorizing By-Laws and Resolutions • � ADOPTED BY THE BOARD OF DIRECTORS OF THE CONTINENTAL INSURANCE COMPANY: This Power of Attorney is granted and is signed by facsimile under and by the authority of the following Resolution adopted by the Executive Committee of the Board of Directors of The Continental Insurance Company by unanimous written consent dated the 13`"day of January, 1989: "RESOLVED,that the Chairman of the Board,the Vice Chairman of the Board,the President,arr Executive Vice President,a Senior Vice President or a Vice President of the Company be,and each or any of them hereby is,authorized to execute Powers of Attomey qualifying the attorney named in the given Power of Attomey to execute in behalf of the Company bonds,undertakings and all contracts of suretyship; and that an Assistant Vice President,a Secretary or an Assistant Secretary be,and each or any of them hereby is,authorized to attest the execution of any such Power of Attorney,and to attach thereto the seal of the Company. RESOLVED,that the signatures of such officers and the seal of the Company may be affixed to any such Power of Attomey or to any certificate relaring thereto by facsimile,and any such Power of Attorney or certificate bearing such facsimile signatures or facsimile seal shall be valid and binding upon the Company when so affixed and in the future with respect to any bond,undertaking or contract of suretyship to which it is attached." ADOPTED BY THE BOARD OF DIRECTORS OF FIREMEN'S INSURANCE COMPANY OF NEWARK,NEW JERSEY: 'This Power of Attomey is granted and is signed by facsimile under and by the authority of the following Resolution adopted by the Executive Committee of the Board of Directors of the FIREMEN'S INSURANCE COMPANY OF NEWARK,NEW JERSEY by unanimous written consent dated the 13`�day of January, 1989: "RESOLVED,that the Chairman of the Board,the Vice Chairman of the Board,the President,an Executive Vice President,a Senior Vice President or a Vice President of the Company be,and each or any of them hereby is,authorized to execute Powers of Attomey qualifying the attomey named in the given Power of Attomey to execute in behalf of the Company bonds,undertakings and all contracts of suretyship; and that an Assistant Vice President,a Secretary or an Assistant Secretary be,and each of any of them hereby is,authorized to attest the execution of any such Power of Attomey,and to attach thereto the seal of the Company. RESOLVED,that the signatures of such ofticers and the seal of the Company may be aft"ixed to any such Power of Attomey or to any certificate relating thereto by facsimile,and any such Power of Attorney or certificate bearing such facsimile signatures or facsimile sea] shall be valid and binding upon the Cornpany when so at�ixed and in the future with respect to any bond,undertaking or contract of suretyship to which it is attached." CITY OF PALIVI DESERT STANDARD FORM SUBDIVISION PAYMENT BOND {LABOR & MATERIALS) NAME OF SUBDIVIS�ON: Kinqston NAIIIfE OF SUBDiVIDER: Et� Hch�E �oastal In�. NAME �F SURETY: The Continental Insurance Company EFFECTlVE DAZE: ��Pril 2, 2010 AMOUNT OF BON�: �194,97�.00 BOND NUMBER: 58673025 PREMIUM: Included in the Faithful Performance Bond KNOW A�L MEN BY THESE PRESENTS: That the person, firm, corparatiort, entity or otherwise, named on Line 2 of Page 1 hereof without regard to gender and number, hereinafter referred to as PRlNCIPAL; and the corporation named on Line 3 af Page 1 hereof, a corporafion aufihorized to do business in the State of California and presently possessed of authority under Title 6 of t�te United States Code to do business under Section 6 to 33 thereof in the aggregate amounts hereof, hereinafter referred #o as SURETY; are jointly and severefy hefd and firmly bound unto and all materialmen, persons, companies or corporatians furnishing materials, provisions, provender or other supg[ies used, in, upon, for or about the per�ormance of the work contracfed to be executed or perfarmed under ti�e terms of that certain SUf3UiVfSlC�N IMPR�VEMENT AGREEMENT hereinafter mentioneci and all persons, companies or corporations ren�ing or hiring teams or implements, or machinery, for contributing to said wor�c to be done, all persons who performed work or labor upan the same, and all persons who supply both work ancf materials, and whose claim has not been paid by PRINCIPAL in the just a�d full sum mentioned on Line 5 of Page 1 hereof for the payment v+,�hereof, well �nd truly to be ma��, said PRINCIPAL and SURETY bind themselves, their heirs, administrators, successors and as5igr�s, joir�tly and severally, f�r,��iy by these presents. THE CONDITiON OF THE OB�.IGATION is such that whereas the above- bounden PRINCIPAL has entered into a SUBDIVISION IMPROVEMENT AGREEMENT with the City of Palm Desert, a municipal corporation of the State... . � of California, hereina�er referred to as CITY, for the cor�struction of public . improvements in the subdivision named on Line 1 0# Page 1 hereof, which said SUBDIVISION IMPROVEMENT AGREENfENT is by this reference incor�orafed � - herein: NOW, THEREFORE, if the above-bou�cfen PRINCIPAL, contractor, person, company or corporation, or his ar its sUbcontractor or sc�bcontractors, fails to pay for any materials, provisions, provender, or the supplies, or teams used in, upan, for, or about the performance of the work contracted to be done, or for any wark ar labor done thereon o€ any kind, or for amounts due under the Unemployment Insurance Act with respect to such .woric for Eabor, SURETY on this bond will pay the same, in an amount not exceeding the sum specifed in this bond, and also, in case suit is brought on this bond, a reasonable attorney s fee which shall be awarded by the court to tf�e prevailing party irt said suit, said attorney's fee to be taxed as costs in said suit and to be included in tf�e judgment therein rendered_ This bond is executed and filed to compfy with �he �rovisions of the Subdivisior► Map Act; and a!I CfTY orcl��a�ces, resoiutions, rufes and regulations supplementa! thcreto; and al! amendments .?��r�:o; and sF�all inure io th� benefit of any and all materialmen, persons, companies or corporations entitle� to file claims under ancl �,y virtue of the pravisions �;e��of. fN WITNESS WHEREOF, PRINCIPAL AIVD SURETY have executed th�s inStri�ment the date mentioned on Line 4 of Pa � � hereof. KB/��'t�r1E Coastal Inc. � ` ' ---� , - �PRfNCIPAL'S SIGNATURE RINCI L'S SIGNATURE . /rj/CNAF1� /� F'/L�E•��tN��12. PRINT NAME PRINT NAME t/P L,a� ,f- Fo R rr�4.t.� f�c,,a.✓.vi��. TlTLF 8� COMPANY NAME TtTL� & COMPANY NAME The Continental Insurance Company SURETY'S SIGNATURE � �--_�-,.. , r-__-_- ___.__.� �"�'= � _ __ � �_�_ SURETY'S SIGNATURE Maria Pena, Attorney-in-Fact (Notarial acknowledgement of execution by ALL PRINCIPALS and SUR�TY must be attached.} CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Riverside On April 5, 2010 before me, Richard R. Keller, Notary Public, personally appeared Michael H. Freeman, Jr., who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/a�e subscribed to the within instrument and acknowledged to me that he%be�e� executed the same in his/�e�/#�ei� authorized capacity(+es), and that by his/�qei� signature(�) on the instrument the person(�), or the entity upon behalf of which the person(�) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. � ,'"' _�.�.i"w. �....n,,. `;t +�T!.*a�dDs ar�',.,�_'n.7, ,��,�r. f�� Li��''" `—�'.� �(,�.� /V��"— __ y�., f 4 ,.1:� � �C:O,..t�4� �t"I �" J � �,�� ;� '�, �� ,� �;�� Y � ��' � Richard R. Keller i t T -`�y`I ��'� p'e4i � �t� i'��,�: . _... �.,rff}�wt�� 7 r� � � i� �.jyi s t -�'.;�w1 � � a �� ' i �` .. i� 1 �-Xi � �, l 1 M s� �':` .� .. .. ,�"'��er W .�.�.,-t. +��` :. �,.S�..r � . CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Los Angeles On April 2, Zoio before me, Tracy Aston, Notary Public, personally appeared Maria Pena, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/a�e subscribed to the within instrument and acknowledged to me that � �e/she/� executed the same in. #�+s/her/##e+� authorized - capacity(�s); and that by �i+s/her/#�ie-E� signature(s) on the instrument the person(s), or the entity upon behalf of which the person(�) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. _w.��,..�. �-F� ,� �, TRAC.Y AST^t�3 �� Commission # 1739954 1'�Notary PublSc -California D ' �2��!/d�'/ � � � / Z :�4� . �P4;I„ �,� �. ��, ��..,��-. � Los Arc,��s County �:�� tv?�Comm.F�r��Y�5,2011� + � Tracy Aston POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY-IN-FACT , Know All Men By These Presents,That'The Continental Insurance Company,a South Carolina corporation,and Firemen's Insurance Company of Newark,New Jersey,a New Jersey corporation(herein called"the CIC Companies"),are duly organized and existing corporations having their principal �f�ices in the City of Chicago,and State of Illinois,and that they do by virtue of the signatures and seals herein a�xed hereby make,constitute and appoint Maria Pena, Edward C Spector, Lisa L Thornton, Tracy Aston, C K Nakamura, E S Albrecht, Jr, Tom Branigan, Clarice Lee,Marina Tapia,Joyce Herrin,Individualiy of Los Angeles,CA,their true and lawful Attorney(s)-in-Fact with full power and authority hereby conferred to sign,seal and execute for and on their behaif bonds,undertakings and other obligatory instruments of similar nature -In Unlimited Amounts- and to bind them thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of their corporations and all the acts of said Attomey,pursuant to the authority hereby given is hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By-Law and Resolutions,printed on the reverse hereof,duly adopted,as indicated,by the Boards of Directors of the corporations. In Witness Whereof,the CIC Companies have caused these presents to be signed by their Senior Vice President and their corporate seals to be hereto affixed on this 13th day of April,2004. ••�••j�,jg� rr�N The Continental Insurance Co an t, '•• c?......r �P Y ��'� �� +o':••'' `'�`f�, Firemen's Insurance Company of Newark,New Jersey � � ce• �.' •' /� �: � •. y' N: :: i.Z. l�O o� �_ : �O, "' +`"• '! .. �� j'� ': �,r �-. ; ' • �+�f.....��s�'� •��'••��N''�� Michael Gengler Senior 'ce President State of Iilinois,County of Cook,ss On this 13th day of April,2004,before me personally came Michael Gengler to me known,who,being by me duly sworn,did depose and say: that he resides in the City of Chicago,State of Illinois;that he is a Senior Vice President of The Continental Insurance Company,a South Carolina corporation,and Firemen's Insurance Company of Newark,New Jersey,a New Jersey corporation described in and which executed the above instrument;that he knows the seals of said corporations;that the seals affixed to the said instrument are such corporate seals;that they were so�xed pursuant to authority given by the Boards of Directors of said corporations and that he signed his name thereto pursuant to like authority,and acknowledges same to be the act and deed of said corporations. OFFICIAL SEAL � ELIZA PRICE � ,//�� NOT�av rueuc,sr�re oc iun+as W COMMISSION IX%RES:09H710B My Commission Expires September 17,2006 Eliza Prioe Notary Public CERTIFICATE I,Mary A.Ribikawskis,Assistant Secretary of The Continental Insurance Company,a South Carolina corporation,and Firemen's Insurance Company of Newark,New Jersey,a New Jersey corporarion do hereby certify that the Power of Attorney herein above set forth is still in force,and further certify that the By-Law and Resolution of the Board of Directors of the corporations printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said corporations this 2nd day of Apr i 1 2010 ,.••"j�v. �o�t+tNr The Continental Insurance Company ��'�� `'•� +o`:••"� � "'��f�, Firemen's Insurance Company of Newark,New Jersey . �. . �: ..s ~' �' ''� �' •J� � �• i f:, �:f�' • �'t '�� ,,• 3� � •.�t.H��•t;. �rii,,.•'►�s� Mary A. ika kis Assistant Secretary Form F6850-11/2001 , ' Authorizing By-Laws and Resolutions ' _ � ADOPTED BY THE BOARD OF DIRECTORS OF THE CONTINENTAL INSURANCE COMPANY: This Power of Attorney is granted and is signed by facsimile under and by the authority of the following Resolurion adopted by the Executive Committee of the Board of Directors of The Conrinental Insurance Company by unanimous written consent dated the 13`�day of January, 1989: "RESOLVED,that the Chairman of the Board,the Vice Chairman of the Board,the President,an Executive Vice President,a Senior Vice President or a Vice President of the Company be,and each or any of them hereby is,authorized to execute Powers of Attomey qualifying the attomey named in the given Power of Attorney to execute in behalf of the Company bonds,undertakings and all contracts of suretyship; and that an Assistant Vice President,a Secretary or an Assistant Secretary be,and each or any of them hereby is,authorized to attest the execution of any such Power of Attomey,and to attach thereto the seal of the Company. RESOLVED,that the signatures of such officers and the seal of the Company may be affixed to any such Power of Attomey or to any certificate relating thereto by facsimile,and any such Power of Attorney or certificate bearing such facsimile signatures or facsimile seal shall be valid and binding upon the Company when so affixed and in the future with respect to any bond,undettaking or contract of suretyship to which it is attached." ADOPTED BY THE BOARD OF DIRECTORS OF FIREMEN'S INSURANCE COMPANY OF NEWARK,NEW JERSEY: This Power of Attomey is granted and is signed by facsimile under and by the authority of the following Resolution adopted by the Execurive Committee of the Board of Directors of the FIREMEN'S INSURANCE COMPANY OF NEWARK,NEW JERSEY by unanimous written consent dated the 13`�day of January, 1989: "RESOLVED,that the Chairman of the Board,the Vice Chairman of the Board,the President,an Executive Vice President,a Senior Vice President or a Vice President of the Company be,and each or any of them hereby is,authorized to execute Powers of Attorney qualifying the attomey named in the given Power of Attomey to execute in behalf of the Company bonds,undertakings and all contracts of suretyship; and that an Assistant Vice President,a Secretary or an Assistant Secretary be,and each of any of them hereby is,authorized to attest the execution of any such Power of Attomey,and to attach thereto the seal of the Company. RESOLVED,that the signatures of such officers and the seal of the Company may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile,and any such Power of Attomey or certificate bearing such facsimile signatures or facsimile seal shall be valid and binding upon the Company when so affixed and in the future with respect to any bond,undertaking or contract of suretyship to which it is attached" Company Profile Page 1 of 2 Company Profile CONTINENTAL INSURANCE COMPANY (THE) CNA 333 S. WABASH, 28TH FL. CHICAGO, IL 60685 800-262-4554 Agent for Service of Process JERE KEPRIOS, C/O CT CORPORATION SYSTEM 818 WEST SEVENTH STREET, 2ND FLOOR LOS ANGELES, CA 90017 JERE KEPRIOS, C/O CT CORPORATION SYSTEM 818 WEST SEVENTH ST LOS ANGELES, CA 90017 LTnable tc�Locate the Agent for Ser��ic�_oFF'rocess`? Reference Information NAIC #: 35289 NAIC Group #: (?218 California Company ID #: 2270-7 Date authorized in California: January O1, 1978 License Status: LTNLIMITED-NORMAL Company Type: Property& Casualty State of Domicile: PENNSYLVANIA Lines of Insurance Authorized to Transact The company is authorized to transact business within these lines of insurance. For an explanation of any of these terms, please refer to the gl�ss<�ry. AIRCRAFT AUTOMOBILE BOILER AND MACHINERY BURGLARY COMMON CARRIER LIABILITY CREDIT DISABILITY FIRE LIABILITY MARINE httri•//intarartiva�z�ah incnranrP ra nnv/�xra}�ncar/ir�h �n r.rnf .�tl RP� r�(. r.rnf�r. �m—�nnQ n i�i�ni n Company Profile Page 2 of 2 MISCELLANEOUS PLATE GLASS SPRINKLER SURETY TEAM AND VEHICLE WORKERS' COMPENSATION Company Complaint Information Comt�atl_y Enforcemetlt Action Documetlts Corn�any Perlarmance & Cam�aris�n_Data Composite Complaint Stu�3ies Want More? Help Me 1�'it�ci a Company_Repre_sentat_ive i�i 1VIy 1'�rea Financial Ratinb Or�ani7tition,s Last Revised-June 26,2009 05:53 PM Copyright OO California Department of Insurance L.44.,�.I�.«4........4.�... �....L. .«....«..«.... .... .'....�.....1.......«i:ai. ,.,. w..,.c ..,.i �,-.F ,.,. �,.,.c�� rr�—�nno ni�i�nin SUBDIVISION IMPROVEMENT AGREEMENT DATE OF AGREEMENT: , 20Sp . NAME OF SUBDIVIDER: I�� t-{oh�l� , .�S`�^�v�t�-tL.Rn� �.4C..��,�ry i� (referred to as "SUBDIVI ER"). NAME OF SUBDIVISION: IC,.( ry� �-��v C��a�l i No. of Lots: 3�. (referred to s "SUBDIVISION"). TENTATIVE MAP RESOLUTION OF APPROVAL NO.: �3 ? �j (TM No:3�� (referred to as "Resolution of Approvai") IMPROVEMENT PLANS APPROVED ON: (referred to as "Improvement Plans"). . -- . ESTIMATED TOTAL COST OF IMPROVEMENTS:$� �( S� _ _- - _ _ _ ESTIMATED TOTAL COST OF MONUMENTATION: �� L�C.� SURETY: BOND NOS: ��'7 3 t� �S SU RETY: a+v-r� ..�.a� -t-�t_ _..�..r ,�.�,t�ni�.s�, v,�,.Yn/.�-�v � -OR- IRREVOCABLE STAND-BY LETTER OF CREDIT NO. FINANCIAL INSTITUTION: -OR- CASH/CERTIFICATE OF DEPOSIT, AGREEMENT DATED: FINANCIAL INSTITUTION: This Agreement is made and entered into by and between the City of Palm Desert,a municipal corporation of the State of California, hereinafter referred to as"CITY", and the SUBDIVIDER. RECITALS RMPUB1DJEti1597 A. SUBDIVIDER has presented to CITY for approval and recordation, a final subdivision map of a proposed SUBDIVISION pursuant to provisions of the Subdivision Map Act of the State of California and the CITY's ordinances and regulations relating to the filing, approval and recordation of subdivision maps. The Subdivision Map Act and the CITY's ordinances and regulations relating to the filing, approval and recordation of subdivision maps are collectively referred to in this Agreement as the"Subdivision Laws". B. A tentative map of the SUBDIVISION has been approved, subject to the Subdivision Laws and to the requirements and conditions contained in the Resolution of Approval. The Resolution of Approval is on file in the Office of the City Clerk and is incorporated into this Agreement by reference. C. The Subdivision Laws establish as a condition precedent to the approval ofi a final map that SUBDIVIDER must have complied with the Resolution ofApproval and must have either(a) completed, in compliance with CITY standards, all of the improvements and land development work required by the Subdivision Laws or the Resolution of Approval or (b) have entered into a secured agreement with CITY to complete the improvements and land development within a period of time specified by CITY. D. In consideration of the approval of a final map for the SUBDIVISION by the City Council, SUBDIVIDER desires to enter into this Agreement, whereby SUBDIVIDER promises to install and complete, at SUBDIVIDER's own expense, all the public improvement work required by CITY in connection with the proposed SUBDIVISION. SUBDIVIDER has secured this Agreement by improvement security required by the Subdivision Laws and approved by the City Attorney. RMPUB�DJE\1597 -2_ E. Complete Improvement Plans for the construction, installation, and completion of the improvements have been prepared by SUBDIVIDER and approved by the City Engineer. The Improvement Plans numbered as referenced previously in this Agreement are on file in the Office of the City Engineer and are incorporated into this Agreement by this reference. All references in this Agreement to the Improvement Plans shall include reference to any specifications for the improvements as approved by the City Engineer. F. An estimate of the cost for construction of the public improvements and performing land development work in connection with the improvements according to the Improvement Plans has been made and has been approved by the City Engineer. The estimated amount is stated on Page 1 of this Agreement. The basis for the estimate is attached as Exhibit "A" to this Agreement. G. CITY has adopted standards for the construction and installation of improvements within the CITY. The Improvement Plans have been prepared in conformance with CITY standards in effect on the date of the Resolution of Approval. H. All public improvement monuments, street signs, and stakes as specified on the final map are to be completed prior to final formal acceptance by the City Council. Individual property monuments must be installed within one year from the formal final Council acceptance of said SUBDIVISION. I. SUBDIVIDER recognizes that by approval of the final map for SUBDIVISION, CITY has conferred substantial rights upon SUBDIVIDER, including the right to sell, lease, or finance lots within the SUBDIVISION. As a result, CITY will be damaged to the extent of the cost of installation of the improvements by SUBDIVIDER's failure to perform its obligations to commence construction of the improvements by the time established in this RMPUB�DJEU 597 _3_ Agreement. CITY shall be entitled to all remedies available to it pursuant to this Agreement and law in the event of a default by SUBDIVIDER. It is specifically recognized that the determination of whether a reversion to acreage or rescission of the SUBDIVISION constitutes an adequate remedy for default by the SUBDIVIDER shall be within the sole discretion of CITY. NOW, THEREFORE, in consideration of the approval and recordation by the City Council of the final map of the SUBDIVISION, SUBDIVIDER and CITY agree as follows: (1) SUBDIVIDER's Obligation to Construct Improvements. SUBDIVIDER shall: (a) Comply with all the requirements of the Resolution of Approval, and any amendments thereto, and with the provisions of the Subdivision Laws. - (b) Complete at SUBDIVIDER's own expense, all the public improvement work required by the Resolution of Approval in conformance with approved Improvement Plans within one year from date of execution of this Agreement; provided however,that the improvements shall not be deemed to be completed until accepted by City Council as provided in Section (17) herein. (c) Furnish the necessary materials for completion of the public improvements in conformity with the Improvement Plans. (d) Acquire, or pay the cost of acquisition by CITY, and dedicate all rights- of-way, easements and other interests in real property for construction and installation of the public improvements, free and clear of all liens and encumbrances. The SUBDIVIDER's obligations with regard to acquisition by CITY of off-site rights-of-way, easements and other interests in real property shall be subject to a separate agreement between SUBDIVIDER and CITY. SUBDIVIDER shall also be responsible for obtaining RMPUB�DJE\1597 -[�- any public or private sanitary sewer, domestic water, drainage, and/or utility easements or authorization to accommodate the SUBDIVISION. (e) Commence construction of the improvements by the time established in Section (22) of this Agreement and complete the improvements by the deadline stated in Section (1)(b) above, unless a time extension is granted by the CITY as authorized in Section (22). (fl Install all SUBDIVISION public improvement monuments required by law and prior to formal final acceptance of the public improvements by CITY. Individual property monuments shall be installed within one year of said acceptance. (g) Install street name signs conforming to CITY standards. Permanent street name signs shall be installed before acceptance of the improvements by CITY. (2) Acquisition and Dedication of Easements or Riqhts-of-Way. If any of the public improvement and land use development work contemplated by this Agreement is to be constructed or installed on land not owned by CITY or SUBDIVIDER, no construction or installation shall be commenced before: (a) The offer of dedication to CITY of appropriate rights-of-way, easements or other interests in real property, and appropriate authorization from the property owner to allow construction or installation of the improvements or work, or (b) The dedication to, and acceptance by, CITY of appropriate rights-of- way, easements or other interests in real property, as determined by the City Engineer, or (c) The issuance by a court of competent jurisdiction pursuant to the State Eminent Domain Law of an order of possession. SUBDIVIDER shall comply in all respects with the order of possession. RMPUB�DJE\]597 _S_ Nothing in this Section (2)shall be construed as authorizing or granting an e�ension of time to SUBDIVIDER. (3) Securit . SUBDIVIDER shall at all times guarantee SUBDIVIDER's performance by furnishing to CITY, and maintaining, good and sufficient security as required by the Subdivision Laws on forms approved by CITY for the purposes and in the amounts as follows: (a) to assure faithful performance of this Agreement in regard to said improvements in an amount of 100% of the estimated cost of the improvements; and (b) to secure payment to any contractor, subcontractor, persons renting equipment, or furnishing labor and materials for the improvements required to be constructed and installed pursuant to this Agreement in the additional amount of 50% of the estimated cost of the improvements; and (c) to guarantee or warranty the work done pursuant to this Agreement for a period of one year following acceptance thereof by CITY against any defective work or labor done or defective materials furnished in the additional amount of 10% of the estimated cost of the improvements; and (d) SUBDIVIDER shall also furnish to CITY good and sufficient security in the amount of one hundred percent(100%)of the estimated cost of setting SUBDIVISION monuments as stated previously in this Agreement in Section (1)(fl for a period of one year plus thirty (30) days from formal acceptance by the City Council. The securities required by this Agreement shall be kept on file with the City Clerk. The terms of the security documents referenced on page 1 of this Agreement are incorporated into this Agreement by this reference. If any security is replaced by another [uv�ua��i s9� _6_ approved security, the replacement shall: 1)comply with all the requirements for security in this Agreement; 2) be provided to the City Engineer to be fi�ed with the City Clerk and, upon filing, 3) shall be deemed to have been made a part of and incorporated into this Agreement. Upon provision of a replacement security with the City Engineer and filing of a replacement security with the City Clerk, the former security may be released. (4) Alterations to Improvement Plans. (a) Any changes, alterations or additions to the Improvement Plans not exceeding ten percent(10%) of the original estimated cost of the improvements,which are mutually agreed upon by CITY and SUBDIVIDER, shall not relieve the improvement security given for faithful performance of this Agreement. In the event such changes, alterations, or additions exceed 10% of the original estimated cost of the improvement, SUBDIVIDER shall provide improvement security for faithful perFormance as required by Section (3)of this Agreement for one hundred percent(100%)of the total estimated cost of the improvements as changed, altered, or amended, minus any completed partial releases allowed by Section (6) of this Agreement. (b) The SUBDIVIDER shall construct the improvements in accordance with CITY standards in effect at the time of adoption of the Resolution of Approval. CITY reserves the right to modify the standards applicable to the SUBDIVISION and this Agreement, when necessary to protect the public safety or welfare or comply with applicable state or federal law or CITY zoning ordinances. If SUBDIVIDER requests and is granted an extension of time for completion of the improvements, CITY may apply the standards in effect at the time of the extension. RMPUB�DJEU597 _'�_ (5) Inspection. SUBDIVIDER shall at all times maintain properfacilities and safe access for inspection of the public improvements by CITY inspectors and to the shops wherein any work is in preparation. Upon completion of the work, SUBDIVIDER may request a final inspection by the City Engineer, or the City Engineer's authorized representative. If the City Engineer, or the designated representative, determines that the work has been completed in accordance with this Agreement, then the City Engineer shall certify the completion of the public improvements to the City Council. No improvements shall be finally accepted by the City Council unless all aspects of the work have been inspected and completed in accordance with the Improvement Plans. When applicable law requires an inspection to be made by City at a particular stage of the work of constructing and installing such improvements, CITY shall be given timely notice of SUBDIVIDER's readiness for such inspection and SUBDIVIDER shall not proceed with additional work until the inspection has been made and the work approved. SUBDIVIDER shall bear all costs of inspection and certification. No improvements shall be deemed completed until accepted by the City Council pursuant to Section (17) herein. (6) Release of Securities. The securities required by this Agreement shall be released as following: (a) Security given for faithful performance of any act, obligation, work or agreement shall be released upon the final completion and acceptance of the act or work, subject to the provisions of subsection (b) hereof. (b) The City Engineer may release a portion of the security given for faithful perFormance of improvement work as the improvement progresses upon application thereof by the SUBDIVIDER; provided, however, that no such release shall be for an amount less than twenty-five percent (25%) of the total improvement security given for �ruB�.r��s9� _g_ faithful performance of the improvement work and that the security shall not be reduced to an amount less than fifty percent(50%) of the total improvement security given for faithful perFormance until final completion and acceptance of the improvement work. In no event shall the City Engineer authorize a release of the improvement security which would reduce such security to an amount below that required to guarantee the completion of the improvement work and any other obligation imposed by this Agreement. (c) Security given to secure payment to the contractor, his or her subcontractors and to persons furnishing labor, materials or equipment shall, at six (6) months after completion and acceptance of the work, be reduced to an amount equal to no less than 125% of the total claimed by all claimants for whom liens have been filed and of which notice has been given to the CITY, plus an amount reasonably determined by the City Engineer to be required to assure the performance of any other obligations secured by the Security. The balance of the security shall be released upon the settlement of all claims and obligations for which the security was given. (d) No security given for the guarantee or warranty of work shall be released until the expiration of the warranty period and until any claims filed during the warranty period have been settled. As provided in Section (10), the warranty period shall not commence until formal final acceptance of all the work and improvements by the City Council. (e) CITY may retain from any security released, an amount sufficient to cover costs and reasonable expenses and fees, including reasonable attorneys' fees. (7) Iniury to Public Improvements, Public Propertv or Public Utilities Facilities. SUBDIVIDER shall replace or repair or have replaced or repaired, as the case may be, all public improvements, public utilities facilities and surveying or subdivision monuments aMrus��s9� _9_ which are destroyed or damaged as a result of any work under this Agreement. SUBDIVIDER shall bear the entire cost of replacement or repairs of any and all public or public utility property damaged or destroyed by reason of any work done under this Agreement, whether such property is owned by the United States or any agency thereof, or the State of California, or any agency or political subdivision thereof, or by CITY or any public or private utility corporation or by any combination of such owners. Any repair or replacement shall be to the satisfaction, and subject to the approval, of the City Engineer. (8) Permits. SUBDIVIDER shall, at SUBDIVIDER's expense, obtain all necessary permits and licenses for the construction and installation of the improvements, give all necessary notices and pay all fees and taxes required by law. (9) Default of SUBDIVIDER. (a) Default of SUBDIVIDER shall include, but not be limited to, (1) SUBDIVIDER's failure to timely commence construction of this Agreement; (2) SUBDIVIDER's failure to timely complete construction of the improvements; (3) SUBDIVIDER's failure to timely cure any defect in the improvements; (4) SUBDIVIDER's failure to perform substantial construction work for a period of twenty (20) calendar days after commencement of the work; (5) SUBDIVIDER's insolvency, appointment of a receiver, orthe filing of any petition in bankruptcy either voluntary or involuntary which SUBDIVIDER fails to discharge within thirty (30) days; RMPUB�DJE\1597 -1�- (6) the commencement of a foreclosure action against the SUBDIVISION or a portion thereof, or any conveyance in lieu or in avoidance of foreclosure; or (7) SUBDIVIDER's failure to perform any other obligation under this Agreement. (b) CITY reserves to itself all remedies available to it at law or in equity for breach of SUBDIVIDER's obligations under this Agreement. CITY shall have the right, subject to this Section, to draw upon or utilize the appropriate security to mitigate CITY's damages in event of default by SUBDIVIDER. The right of CITY to draw upon or utilize the security is additional to and not in lieu of any other remedy available to CITY. It is specifically recognized that the estimated costs and security amounts may not reflect the actual cost of construction or installation of the improvements and, therefore, CITY's damages for SUBDIVIDER's default shall be measured by the cost of completing the required improvements. The sums provided by the improvement security may be used by CITY for the completion of the public improvements in accordance with the improvement plans and specifications contained herein. In the event of SUBDIVIDER's default under this Agreement, SUBDIVIDER authorizes CITY to perform such obligation twenty (20) days after mailing written notice of default to SUBDIVIDER and to SUBDIVIDER's surety, and agrees to pay the entire cost of such performance by CITY. CITY may take over the work and prosecute the same to completion, by contract or by any other method CITY may deem advisable, for the account and at the expense of SUBDIVIDER, and SUBDIVIDER's surety shall be liable to CITY for any excess cost or damages occasioned CITY thereby. In such event, CITY, without liability for so doing, may ruv�ruB�.r��s9� —11— take possession of, and utilize in completing the work, such materials, appliances, plants and other property belonging to SUBDIVIDER as may be on the site of the work and necessary for performance of the work. (c) Failure of SUBDIVIDER to comply with the terms of this Agreement shall constitute consent to the filing by CITY of notice of violation against all the lots in the SUBDIVISION, or to rescind the approval or otherwise revert the SUBDIVISION to acreage. The remedy provided by this subsection (c) is in addition to and not in lieu of other remedies available to CITY. SUBDIVIDER agrees that the choice of remedy or remedies for SUBDIVIDER's breach shall be in the discretion of CITY. (d) In the event that SUBDIVIDER fails to perform any obligation hereunder, SUBDIVIDER agrees to pay all costs and expenses incurred by CITY in securing performance of such obligations, including but not limited to fees and charges of architects, engineers, attorneys, other professionals, and court costs. (e) The failure of CITY to take an enforcement action with respect to a default, or to declare a breach, shall not be construed as a waiver of that default or breach or any subsequent default or breach of SUBDIVIDER. (10) Warrantv. SUBDIVIDER shall guarantee orwarranty the work done pursuant to this Agreement for a period of one year after final formal acceptance of the SUBDIVISION by the City Council against any defective work or labor done or defective materials furnished. If within the warranty period any work or improvement or part of any work or improvement done, furnished, installed, or constructed by SUBDIVIDER fails to fulfill any of the requirements of this Agreement or the improvement plans and specifications referred to herein, SUBDIVIDER shall without delay and without any cost to CITY, repair or replace or reconstruct any defective or otherwise unsatisfactory part or �nus�.r��is9� —12— parts of the work or structure. Shouid SUBDIVIDER fail to act promptly or in accordance with this requirement, SUBDIVIDER hereby authorizes CITY, at CITY's option, to perform the work twenty (20) days after mailing written notice of default to SUBDIVIDER and to SUBDIVIDER's surety, and agrees to pay the cost of such work by CITY. Should CITY determine that an urgency requires repairs or replacements to be made before SUBDIVIDER can be notified, CITY may, in its sole discretion, make the necessary repairs or replacement or perForm the necessary work and SUBDIVIDER shall pay to CITY the cost of such repairs. (11) SUBDIVIDER Not Aqent of CITY. Neither SUBDIVIDER nor any of SUBDIVIDER's agents, contractors or subcontractors are or shall be considered to be agents of CITY in connection with the performance of SUBDIVIDER'S obligations under this Agreement. (12) Iniury to Work. Until such time as the improvements are accepted by CITY, SUBDIVIDER shall be responsible for and bear the risk of loss to any of the improvements constructed or installed. Until such time as all improvements required by this Agreement are fully completed and accepted by CITY, SUBDIVIDER will be responsible for the care, maintenance of, and any damage to such improvements. CITY shall not, nor shall any officer or employee thereof, be liable or responsible for any accident, loss or damage, regardless of cause, happening or occurring to the work or improvements specified in this Agreement prior to the completion and acceptance of the work or improvements. All such risks shall be the responsibility of and are hereby assumed by SUBDIVIDER. (13) Environmental Warrantv. Prior to the acceptance of any dedications or improvements by CITY, SUBDIVIDER shall certify and warrant that neither the property to be dedicated nor SUBDIVIDER is in violation of any environmental law and neither the RMPUB�DJE\1597 -1 3- property to be dedicated nor the SUBDIVIDER is subject to any existing, pending or threatened investigation by any federal, state or local governmental authority under or in connection with environmental law. Neither SUBDIVIDER nor any third party will use, generate, manufacture, produce, or release, on, under, or about the property to be dedicated, any hazardous substance except in compliance with all applicable environmental laws. SUBDIVIDER has not caused or permitted the release of, and has no knowledge of the release or presence of, any hazardous substance on the property to be dedicated or the migration of any hazardous substance from or to any other property adjacent to, or in the vicinity of, the property to be dedicated. SUBDIVIDER's prior and present use of the property to be dedicated has not resulted in the release of any hazardous substance on the property to be dedicated. SUBDIVIDER shall give prompt written notice to CITY at the address set forth herein of: (a) Any proceeding or investigation by any federal, state or local governmental authority with respect to the presence of any hazardous substance on the property to be dedicated or the migration thereof from or to any other property adjacent to, or in the vicinity of, the property to be dedicated; (b) Any claims made or threatened by any third party against CITY or the property to be dedicated relating to any loss or injury resulting from any hazardous substance; and, (c) SUBDIVIDER's discovery of any occurrence or condition on any property adjoining in the vicinity of the property to be dedicated that could cause the property to be dedicated or any part thereof to be subject to any restrictions on its ownership, occupancy, use for the purpose for which is it is intended, transferability or suit under any environmental law. �rUs�.��is9� —14— (14) Other Aqreements. Nothing contained in this Agreement shall preclude CITY from expending monies pursuant to agreements concurrently or previously executed between the parties, or from entering into agreements with other subdividers for the apportionment of costs of water and sewer mains, or other improvements, pursuant to the provisions of the CITY ordinances providing therefore, nor shall anything in this Agreement commit CITY to any such apportionment. (15) SUBDIVIDER'S Obliqation to Warn Public Durinq Construction. Until formal final acceptance of the improvements, SUBDIVIDER shall give good and adequate warning to the public of each and every dangerous condition existent in said improvements, and will take all reasonable actions to protect the public from such dangerous condition. (16) Vesting of Ownership. Upon formal final acceptance of the work by CITY and recordation of the Resolution of Acceptance of Public Improvements, ownership of the improvements constructed pursuant to this Agreement shall vest in CITY. (17) Final Acceptance of Work. Acceptance of the work on behalf of CITY shall be made by the City Council upon recommendation of the City Engineer after final completion and inspection of all improvements. The City Council shall act upon the Engineer's recommendation within sixty(60)days from the date the City Engineer certifies that the work has been finally completed, as provided in Section (6). Such acceptance shall not constitute a waiver of defects by CITY. (18) Indemnitv/Hold Harmless. CITY or any officer or employee thereof shall not be liable for any injury to persons or property occasioned by reason of the acts or omissions of SUBDIVIDER, its agents, or employees, contractors and subcontractors in the performance of this Agreement. SUBDIVIDER further agrees to protect, defend, indemnify and hold harmless CITY, its officials, boards and commissions, and members thereof, RMPUB�DJE\1597 —1 cJ_ agents and employees from any and all claims, demands, causes of action, liability or loss of any sort, because of, or arising out of, acts or omissions of SUBDIVIDER, its agents, employees, contractors and subcontractors in the performance of this Agreement, except for such claims, demands, causes of action, liability, or loss arising out of the sole active negligence of the CITY, its officials, boards, commissions, the members thereof, agents, and employees, including all claims, demands, causes of action, liability, or loss because of, or arising out of, in whole or in part, the design or construction of the improvements. This indemnification and agreement to hold harmless shall extend to injuries to persons and damages or taking of property resulting from the design or construction of said SUBDIVISION, and the public improvements as provided herein, and in addition, to adjacent property owners as a consequence of the diversion of waters from the design and construction of public drainage systems, streets and other public improvements. Acceptance by CITY of the improvements shall not constitute an assumption by CITY of any responsibility for any damage or taking covered by this Section. CITY shall not be responsible for the design or construction of the property to be dedicated or the improvements pursuant to the approved improvement plans or map, regardless of any negligent action or inaction taken by CITY in approving the plans or map, unless the particular improvement design was specifically required by CITY over written objection by SUBDIVIDER submitted to the City Engineer before approval ofthe particular improvement design, which objection indicated that the particular improvement design was dangerous or defective and suggested an alternative safe and feasible design. After acceptance of the improvements, the SUBDIVIDER shall remain obligated to eliminate any defect in design or dangerous condition caused by the design or construction defect; however, SUBDIVIDER shall not be responsible for routine �rus��Ev s9� —16— maintenance. Provisions of this Section shall remain in full force and effect for ten (10) years following the acceptance by CITY of the improvements. It is the intent of this Section that SUBDIVIDER shall be responsible for all liability for design and construction of the improvements installed or work done pursuant to this Agreement and that CITY shall not be liable for any negligence, nonfeasance, misfeasance or malfeasance in approving, reviewing, checking, or inspecting any work or construction. The improvement security shall not be required to cover the provisions of this Section. SUBDIVIDER shall reimburse CITY for all costs and expenses (including but not limited to fees and charges of architects, engineers, attorneys, and other professionals, and court costs) incurred by CITY in enforcing the provisions of this Section. (19) Personal Nature of SUBDIVIDER'S Obli atq ions. All of SUBDIVIDER's obligations under this agreement are and shall remain the personal obligations of SUBDIVIDER notwithstanding a transfer of all or any part of the property within the SUBDIVISION subject to this Agreement, and SUBDIVIDER shall not be entitled to assign its obligations under this Agreement to any transferee of all or any part of the property within the SUBDIVISION or to any other third party without the express written consent of CITY. (20) Sale or Disposition of SUBDIVISION. Seller or other SUBDIVIDER may request a novation of this Agreement and a substitution of security. Upon approval of the novation and substitution of securities, the SUBDIVIDER may request a release or reduction of the securities required by this Agreement. Nothing in the novation shall relieve the SUBDIVIDER of the obligations under Section (18)for the work or improvement done by SUBDIVIDER. �us�n��t s9� —17— (21) Time of the Essence. Time is of the essence in the performance of this Agreement. (22) Time for Commencement of Work; Time Extensions. SUBDIVIDER shall commence substantial construction of the improvements required by this Agreement not later than six (6) months after the date of this Agreement. In the event good cause exists as determined by the City Engineer, the time for commencement of construction or completion of the improvements hereunder may be extended for a period or periods not exceeding a total of two(2) additional years. The extension shall be executed in writing by the City Engineer. Any such extension may be granted without notice to SUBDIVIDER's surety and shall not affect the validity of this Agreement or release the surety or sureties on any security given for this Agreement. The City Engineer shall be the sole and final judge as to whether or not good cause has been shown to entitle SUBDIVIDER to an extension. Delay, other than delay in the commencement of work, resulting from an act of CITY, act of God, or by storm or inclement weather, strikes, boycotts or similar political actions which prevents the conducting of work, which SUBDIVIDER could not have reasonably foreseen and, furthermore, were not caused by or contributed to by SUBDIVIDER, shall constitute good cause for and extension of the time for completion. As a condition of such extension, the City Engineer may require SUBDIVIDER to furnish new security guaranteeing perFormance of this Agreement as extended in an increased amount as necessary to compensate for any increase in construction costs as determined by the City Engineer. (23) No Vestinq of Rights. Performance by SUBDIVIDER of this Agreement shall not be construed to vest SUBDIVIDER's rights with respect to any change in any zoning or building law or ordinance. �rUB�.r��s9� —18— (24) Notices. All notices required or provided for under this Agreement shall be in writing and delivered in person or sent by mail, postage prepaid and addressed as provided in this Section. Notice shall be effective on the date it is delivered in person, or, if mailed, on the date of deposit in the United States mail. Notices shall be addressed as follows unless a written change of address is filed with the City: Notice to CITY: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Attn: Public Works Director Notice to SUBDIVIDER: � � � �� .— � -��.a �n. �.fi f-�L,� � � ;, � ,+�n�, �� N'L./bW +'7 V ..� � � . �.�% t l_C�o::r/d.�� L��A . �l� C� i Notice to SURETY: ��}�jnc�n-�( li� ' .r�n 'P_ � . ��D I�YI L,1.�1 L� f�'i'Y�i �j�1 �iSiC �nSi.t..�'c.�� rV�P�,� �f�; I nC . C,r��..�5�-ru t'_�tc�q�ry i�' €� s ��:P ��a�7 i,�,!i ish� re Ci l�ci. 5 ft 21��G u�5��I eS �✓��i 7 (25) Compliance With Laws. SUBDIVIDER, its agents, employees,contractors and subcontractors shall comply with all federal, state and local laws in the performance of the improvements and land development work required by this Agreement. (26) Severability. The provisions of this Agreement are severable. If any portion of this Agreement is held invalid by a court of competent jurisdiction, the remainder of the agreement shall remain in full force and effect unless amended or modified by the mutual consent of the parties. (27) Captions. The captions of this Agreement are for convenience and reference only and shall not define, explain, modify, limit, exemplify, or aid in the interpretation, construction or meaning of any provisions of this Agreement. alvirusw.r��is9� —19— (28) Litiqation or Arbitration. In the event that suit or arbitration is brought to enforce the terms of this Agreement, the prevailing party shall be entitled to litigation costs and reasonable attorneys' fees. (29) Incorporation of Recitals. The recitals to this Agreement are hereby incorporated into in the terms of this Agreement. (30) Entire Aqreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter. All modifications, amendments, or waivers of the terms of this Agreement must be in writing and signed by the appropriate representatives of the parties. (31) Interpretation. This Agreement shall be interpreted in accordance with the laws of the State of California. (32) Jurisdiction. Jurisdiction of all disputes over the terms of this Agreement shall be in the County of Riverside, State of California. /// /// /// /// aMrus��is9� —2 0— IN WITNESS WHEREOF, this Agreement is executed by the parties as of the date herei bov first written; by CITY, by and through its Mayor. �' CITY OF PALM DESERT SUBDIVID i��,,c� ��.,,�,,p..,,u 4� � }�a w�, �v v��{r��ru �`f� . By: SUBDIVIDER MAYOR (Proper Notarization of SUBDIVIDER's signature is required and shall be attached) ATTEST: CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY Rn�rua��is9� —21— CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Riverside On April 6, 2010 before me, Richard R. Keller, Notary Public, personally appeared Michael H. Freeman, Jr., who proved to me on the basis of satisfactory evidence to be the person(�) whose name(�) is/a�e subscribed to the within instrument and acknowledged to me that he/�k�� executed the same in his/#�er-�e+� authorized capacity(+es), and that by his/�►e�� signature(�) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. "k,-r:-.;'�.H:as.��''nt%,-�"k�sk'�'o�,C �c'�' �u c��„�, '" 4�''z.�.�,a:�� §" `/'%i��v C�---� �-- ��/'v�------_ � _ � 4��Q^i �y? �lV� 3t S� � ��` �'�� " ��` ' ��`'� �7 Richard R. Keller *� "' ;;�t `.>� :s�,� �' �. .. � �,..�;,.� ; 1'` � 'bY ,�{ t�.t W tcl {'„�- ry- �r. 9 �� ' � 9,�r, x �� .� s � `' � . . . ._ m. r_ - •.�a* �'� t��.-rs. �,.,.9 7� MDS CONSULTING PLANNiNG,ENGINEERING,SURVEYING IRVINE/ LA QUtNTA COST ESTIMATE FOR BOND PURPOSES Tract No. 34391 -Imperiai Court,City of Palm Desert Site improvements PREPARED: MARCH 30, 2010 ITEM QUANTITY UN1T UNIT COST COST ROUGH GRADING: PM-10 DUST CONTROL 10 AC 2,000.00 20,000 6'HIGH COMB. RETAINING/GARDEN WALL 762 LF 85.00 64,770 TOTAL ESTIMATED ROUGH GRADING: $ 84,770 STREETIMPROVEMENTS 4"AC OVER 7"CLASS II AB PAVEMENT 15,030 SF 2.00 30,060 3"AC OVER 6"CIASS II AB PAVEMENT 21,345 SF 1.75 37,354 TYPE I(8")CURB&GUTTER 460 LF 10.00 4,600 TYPE I(6")CURB&GUTTER 2,310 LF 10.00 23,100 TYPE I CROSS GUTTER 3,395 SF 5.00 16,975 PCC ACCESS RAMP 4 EA 1,000.00 4,000 PCC DRIVE APPROACH 5,225 SF 5.00 26,125 PCC SIDEWALK 18,715 SF 3.50 65,503 8"THICK CONCRETE DRIVEWAY 470 SF 5.Q0 2,350 ADJUST WATER VALVE TO GRADE 9 EA 500.00 4,500 ADJUST SEWER MANHOLE TO GRADE 4 EA 750.00 3.000 STREET NAME SIGN 2 EA 500.00 1,OOQ STOP SIGN,BAR AND LEGEND 2 EA 500.00 1,000 BLUE RETRO-REFECTIVE MARKER 5 EA 50.00 250 5800 LUMEN STREET LIGHT 2 EA 2,500.00 5,000 TOTAL ESTIMATED STREET IMPROVEMENTS: $ 224,816 WATERIMPROVEMENTS 12"DIP WATER MAIN(INCLUDES FITTINGS) 290 LF 40.00 11,600 8"DIP WATER MAIN(INCLUDES FITfINGS) 1,175 LF 30.00 35,250 12"RESILIENT WEDGE GATE VALVE 4 EA 1,500.00 6,000 FIRE HYDRANT ASSEMBLY 5 EA 3,000.00 15,000 1"x3l4"RESIDENTIAL WATER METER 32 EA 400.00 12,800 1"x1-1/2"IRRIGATION WATER METER 2 EA 500.00 1,000 TOTAL ESTIMATED WATER IMPROVEMENTS: $ 81,650 Note CVWD Water Deposit=$4,491 TOTAL ESTIMATED CONSTRUCTION COST: $ 391,236 MONUMENTATION: 1 LS 5,720.00 $ 5,720 396,956 CONTINGENCY FEE 10% TOTAL CONTINGENCY FEE: S 39,696 TOTAL EST�MATED PROJECT COST: $ 436,652 UNIT PRICES USED HEREIN ARE BASED UPON EITHER CLIENT PROVIDED INFORMATION OR FROM BEST AVAILABLE INDUSTRY DATA AT THE TIME OF PREPARATION. CONSULTANT ASSUMES NO Y FOR THE EXACTNESS OF SUCH UNIT PRICES IN EITHER EV O�QI �ONq Q� �Ev C. � �� PREPAREO UNDER THE SUPERVISION OF: �� .� 0.9 'Z ct! 6�� `�' No.20596 � m d Exp.5-30-31 � # * March 30,2010 STAN Y C. MORSE, . .E.2059 � �+��` � DATE EXP. 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