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Home My WebLink AboutRelease Security 73750 El Paseo � CITY OF PALM DESERT PUBLIC WORKS DEPARTMENT STAFF REPORT REQUEST: ACCEPT IMPROVEMENTS, RELEASE SECURITY AND WAIVE THE MAINTENANCE BOND REQUIREMENT FOR THE BUILDING LOCATED AT 73-750 EL PASEO SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works APPLICANT: 73750 EI Paseo Retail Group, LLC Steven Gordon 73385 Pinyon Street Palm Desert, CA 92260 DATE: May 13, 2010 CONTENTS: Letter of Credit Agreement Vicinity Map Recommendation By Minute Motion, accept improvements, release security and waive the maintenance bond requirement for the building located at 73-750 EI Paseo. Backqround 73-750 EI Paseo is located between Larkspur Lane and San Luis Rey Avenue. At the time of permit issuance, performance security in the total amount of $18,017 in the form of a letter of credit 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. Therefore, staff recommends that City Council accept the work as complete, authorize the release of subject security and waive the maintenance bond requirement due to the minor nature of the improvements. Staff Report Accept Improvements, Release Security and the Waive Maintenance Bond Requirement for the building Located at 73-750 EI Paseo May 13, 2010 Page2of2 Fiscal Analysis There is no fiscal impact associated with this action. Prepared By: Depart nt e d: ��a �'�C��`. Christina Canales, Assistant Engineer Mark Greenw od, P.E., Director of Public Works Paul S. Gibson, Director of Finance C�Tv r(��'�,'c�LACT1oN A�'�AIl��Vf'.Il � _ Hli',�1��@,'�� R�:CTIVED (1"9'1H�?I2 A va � MErTtNG UATE j-1 3-,�� /`� � AY r S:.�d.'1�G',t�,�„ ' l� ,� �` �° �i P ��-�v2,...--�_--____---� NOES: 'o��_ „� � r_ �_� �� AI3SENT: U� J n M. Wohlmuth, City Manager ABSTA(N: VF,RIFIED BY: Original on File with City Clerk's ffce IRREVOCABLE STANDBY LETTER OF CREDIT Letter of Credit Num6er: 909-6639 Amount:U.S. $ 12,071.00(twelve ihousand and eleven dollars and zero cents U.S.DOLLARS) This Letter of Credit is issued on June 15, 2009 by Issuer in favor of the Beneficiary for the account of Applicant. The parties' names and their addresses are as follows: APPLICANT: 73-750 EL PASEO RETAIL GROUP,LLC 73385 Pinyon Street Palm Desert,California 92260 BENEFICIARY: CITY OF PALM DESERT Attn: Public Works Department 73510 Fred Waring Drive Palm Desert,California 92260 ISSUER: FIRSTBANK 73000 Highway 111 Palm Desert,California 92260 1. LETTER OF CREDIT. Issuer establishes this Irrevocable Standby Letter of Credit fLetter of Credit�in favor of Beneficiary in the amount indicated above. Beneficiary may draw on this Letter of Credit with a Draft(or Drafts,if the maximum number of drawings is greater than one�. Each Dreft shall be signed on behalf of Beneficiary and be marked"Drawn under FirstBank Letter of Credit No. 909-6639 dated June 15,2009." Drafts must be presented at Issuer's address shown above on or before the Expiration Date. The presentation oi any Dra{t shalf reduce the Amount available under this Letter of Credit by the amount of the draft. This Letter of Credit sets forth in full the terms of Issuer's obligation to Beneficiary. This obligation cannot be modified by any reference in this Letter of Credit,or any document to which this Letter of Credit may be related. This Letter of Credit expires on the Expiration Date. 2.DRAWINGS. Partial drawings shall not be permitted under this Letter of CrediY."Draft"means a draft drawn at sight. 3.DOCUMENTS. Each D�aft must be accompanied by the following,in original and two copies except as stated: A.The original Letter of Credit,together with any amendments. Issuer shali be entitled to accept a draft and the documentation described above,as required by the terms of this Letter of Credit, from any person purporting to be an authorized officer or representative of Beneficiary Without any obligation or duty on the part of Issuer to verify the identity or authority of the person presenting the draft and such documentation. 4.SPECIAL INS7RUCTIONS. This letter of credit secures the faithful performance of the agreement dated June 16,2009 between the applicant and the City of Palm Desert 5. EXPIRATION DATE. This Letter of Credit expires at the close of business at Issuer's address at 5:00 PM Pacific Time(Timel on Juna 15,2010(Date). Issuer egrees to honor all Drafts presented in strict compliance with the provisions of this Letter of Credit on or before the Expiration Date. 6.NON-TRANSFERABLE. This Letter of Cradit is not transierable. 7. APPLICABlE LAW. This Letter of Credit is governed by the Uniform Customs and Practice for pocumentary Credits, 2006 Revision,Internationa!Chamber oi Commerce Publication No. 600(UCP�,or any later version or amendment. This Letter of Credit is also governed by the laws of California,except as those laws conflict with the UCP, ISSUER: FirstBank By Lance J.Barney, ice Presi t Date �O�l� �Cf 73-750 EI Pasao Re[ail Group,L�G Standby Letter Of Credit CA/4KlSheets00063000005994026061709Y a1996 Bankers Systems,Inc.,St.Cloud,MN F�r�`" Page 7 IRREVOCABLE STANDBY LETTER OF CREDIT Letter of Credit Number: 909-6367 Amount:U.S. 3 6,006.00(six thousand and six dollars and zero cents U.S.OOLLARS) This letter of Credit is issued on June 15, 2009 by Issuer in favor of the Beneficiary for the account of Applicant. The parties' names and their addresses are as follows: APPLICANT: 73-750 EL PASEO RETAI!GROUP,LLC 73385 Pinyon Street Palm Desert,California 92260 BENEFICIARY: CITY OF PALM DESERT Attn: Public Works Department 73510 Fred Waring Drive Palm Dasert,California 92260 ISSUER: FIRSTBANK 73000 Highway 111 Palm Desert,California 92260 1. LETTER OF CREDIT. Issuer establishes this�rrevocable Standby Letter ot Credit (Lettar of Credit) in favor of Beneficiary in the amount indicated above. Beneficiary may draw on this Letter of Credit with a Dreft for Drafts,if the maximum number of drawings is greater than one). Each Draft shall be signed on behalf of Beneficiary and be marked "Drawn under FirstBank Latter of Credit No. 909-6361 dated June 15,2009." Drafts must be presented at Issuer's address shown above on or before the Expiration Date. The prasentation of any Draft shalt reduce the Amount available under this Letter of Credit by the amount oi the draft. Thfs Letter of Credit sets forth in full the terms of Issuer's obligation to Beneficiary. This obligation cannot be modified by any reference in this Letter of Credit,or any document to which this Letter of Credit may be related. This Letter of Credit expires on the Expiration Date. 2.DRAWINGS. Partial drawings shall not be permitted under this Leiter of Credit."Draft"means a draft drawn at sight. 3.DOCUMENTS. Each Drait must ba accompanied by the foliowing,in original and two copies except as stated: A.The originai Letter of Credit,together with any amendments. Issuer shall be entitled to accapt a draft and the documantation described above,as required by the terms of this Letter of Credit, from any person purporting to be an authorized officer or representative of Beneficiary without any obligation or duty on the part of Issuer to verify the identity or authority of the person presenting the draft and such documentation. 4.SPECIAL INSTRUCTIOIdS. This letter of cradit secures the labor and materials of the agreement dated June 16,2009 between the applicant and the City of Palm Desert 5. EXPIRATION DA7E. This Letter oi Credit expires at the close of business at Issuer's address at 5;00 PM Pacific Time�Time}on June 1 5,2010(Datel. Issuer agrees to honor all Drafts presented in strict compliance with the provisions of this Letter of Credit on or before the Expiration Date. 6.NON-TRANSFERABLE. This Letter of Credit is not transferable. 7. APPLICABLE LAW. This Letter of Credit is governed by the Uniform Customs and Practice for pocumentary Credits, 200fi Revision,International Chamber of Commerce Publication No.600{UCP�,or any later version or amendment. This Letier of Credit is also governed by the laws of California,except as those laws conf]ict with the UCP. ISSUER: FirstBank BY . Lance J.Barney, enie ice Presi t Date U/(r6(� 73-750 EI Paseo Retail Group,LLC Standby Letter O}Cradit CA/4KLSheets00063000005994026067709Y D7996 Bankers Syscems,Ine.,St,Cloud,MN F_�'rt�'" pa8a� . . �b�.�,�' r , I�PROVEMENT AGREEMENT DATE OF AGREEMENT: �,n► � � 6 , 20 Q � NAME OF DEVELOPER: 73�7,� �L �A3�J ��7�j'�� (r�� wG (referred to as "DEVELOPER"). NAME OF DEVELOPMENT: � 3 -- ?,$�j ,�� q-g�v (referred to as "DEVELOPMENT"). DEVELOPMENT RESOLUTION OF APPROVAL NO.: Resolution N�A (referred to as "Resolution of Approval") IMPROVEMENT PLANS NO.: — 2,�, (referred to as "Improvement Plans"). ESTIMATED TOTAL COST OF IMPROVEMENTS:$_ l' U/7 po SURETY: ��'�`,�F�/X O� /J.��iry �'�j',�� LETTE ,,,,,•.._,„�. R OF CREDiT/BOND NOS.: � /l�-�� i'�9G9_��a/ . '.�.�,' _ _ This Agreement is made and entered into by and between the City of Palm Desert, a municipal corporation of the State of Califomia, hereinafter referred to as "C(TY", and the DEVELOPER. RECITALS A• DEVELOPER has presented to CITY for approval a Conditional Use Permit/Precise Plan of Development pursuant to provisions of the CITY's ordinances and regulations relating to development approval. B- A Conditional Use Permit/Precise Plan of Development has been approved, subject to the requirements and conditions contained in the RMPU8IVCDV60 � r�"�� ' l.:� • � Resolution of Approval. The Resoiution of Approval is on fife in the Office of � F 7 the Director of Community Development and '+s incorporated into this Agreement by reference. C. In consideration of the approval of a Conditional Use Permit/Precise Plan of Development for the DEVELOPMENT by the Pianning Commision, DEVELOPER desires to enter into this Agreement, whereby DEVELOPER promises to install and complete, at DEVELOPER's own expense, all the pub(ic improvement work required by CITY in connection with the proposed DEVELOPMENT. DEVELOPER has secured this Agreement by improvement security required by the City and approved by the City Attorney. D. Complete Improvement Plans for the construction, installation, and completion of the improvements have been prepared by DEVELOPER and approved by the City Engineer. The Impcovement 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 shail include reference to any specifications for the improvements as approved by the City Engineer. E. An estimate of the cost for construction of the public improvements and performing fand development work in connection with the improvements according to the Improvement Plans has been made and has been approved by ihe City Engineer. The estimated amount is stated on Page 1 of this �seuaivc�veo M � k �' °vw. Agreement. The basis for the estimate is on file in the 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 Improvement Plans have been prepared in conformance with CITY standards in effect on the date of the Resolution of Approval. NOW, THEREFORE, in consideration of the approva! of the DEVELOPMENT, DEVELOPER and CITY agree as foNows: 1) DEVELOPER's Obliqation to Construct Improvements. DEVELOPER shall: {a) Compiy with a(I the requirements of the Resolution of Approval, and any amendments thereto. (b) Complete at DEVELOPER's own expense, all the public improvement work required by the Resolution of Appraval in conformance with approved Improvement Plans within one year from date of execution of this Agreement. (c) Fumish the necessary materials for completion of the public improvements in conformity with the Improvement Plans. (d) Acquire, or pay the cast of acquisition by ClTY, 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 DEVELOPER's obligations with regard to acquisition by C(TY of off-site rights-of-way, easements and other interests in real property shall be subject to a separate agreement between DEVELOPER and CITY. RMPUBIVCD1760 0 £ k � � � � � � � ��a�' "� � DEVELOPER shali also be responsible for obtaining any public or private sanitary sewer, domestic water, drainage, and/or utility easements or authorization to accommodate the DEVELOPMENT_ (e) Commence construction of the improvements by the time established in Section (21) of this Agreement and complete the improvements by the deadline stated in Section (1)(b) above, unless a time extension is granted by the CITY as authorized in Section (21). 2) Acquisition and Dedicatian of Easements or Rights-of-Way. If any of the public improvement and land use development work contemplated by this Agreement is to be constructed or installed on land not owned by CITY or DEVELOPER, no construction or installation shall be commenced before: (a) The offer of dedication to CITY of appropriate rights-of-way, easements or other interests in real property, and appropriate authorization from the property owner to altow construction o� 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. DEVELOPER shall comply in all respects with the order of possession. RMPUB\VCDV60 . � � �: . ��'. Nothing in #his Section (2) shall be construed as authorizing o� granting an extension of time to DEVELOPER. 3) Security. DEVELOPER shall at a!I times guarantee DEVELOPER's performance by fumishing to CITY, and maintaining, good and sufficient security as required 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, subcontracto�, persons renting equipment, or fumishing labor and materials for the improvements required to be constructed and installed pursuant to this Agreement in the additional amount of 50% of the estimated cost of the improvements; and The securities required by this Agreement shall be kept on file with the City Clerk. The terms of the secu�ity documents referenced on page 1 of this Agreement are incorporated into this Agreement by this reference. If any security is replaced by another approved security, the replacement shall: 1) comply with all the requirements for security in this Agreement; 2) be provided to the City Engineer to be filed with the City Clerk and, upon filing, 3) shall be deemed to have been made a part of and incorporated into this Agreement. Upon provision of a replacement security with the City Engineer and filing of a replacement security with the City Clerk, the former security may be released. RMPUB�VCD\�bp �4=.�� , 4) Alterations to (mp�ovement Plans. (a) Any changes, alterations or additions to the Improvement Plans not exceeding ten percent (10%) of the originat estimated cost of the improvements, which are mutually agreed upon by C1TY and DEVELOPER, shall not relieve the improvement security given for faithful performance of this Agreement. In the event such changes, alterations, or additions exceed 10% of the original estimated cost of the improvement, DEVELOPER shall provide improvement security for faithful performance as required by Section (3) of this Agreement for one hundred percent (100%) of the total estimated cost of the improvements as changed, altered, or amended, minus any completed partial releases allowed by Section (6) of this Agreement. (b) The DEVELOPER shaN construct the improvements in accordance with CITY standards in effect at the time of adoption of the Resolution of Approval. CITY reserves the right to modify the standards applicable to the DEVELOPMENT and this Agreement, when necessary to protect the pubiic safety or welfare or comply with applicable state or federal law or CITY zoning ordinances. If DEVELOPER requests and is granted an extension of time for completion of the improvements, CITY may apply the standards in effect at the time of the extension. 5) lnspection. DEVELOPER shall at all times maintain proper facilities and safe access for inspection of the public improvements by CITY inspectors and to the shops wherein any work is in preparation. Upon completion of the work, DEVELOPER may request a finai inspection by the City Engineer, or the City RMPUB'�.V CI7-J66 µ�. � ;.,. ' �..� �� 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 finaliy accepted unless all aspects of the work have been inspected and completed in accordance with the improvement Plans. When applicable law requires an inspection to be made by City at a particular stage of the work of constructing and installing such improvements, ClTY shall be given timely notice of DEVELOPER's readiness for such inspection and DEVELOPER shall not proceed with additional work until the inspection has been made and the work approved. DEVELOPER shall bear all costs of inspection and certification. No improvements shall be deemed completed until accepted pursuant to Section (16) herein. 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 shail 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 DEVELOPER; provided, however, that no such reiease shall be for an amount less than twenty-five percent (25%) of the total improvement security given for faithfu! 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 RMPUBIVCD\760 �;� �� ' work. In no event shail the City Engineer authorize a release of the improvement security which would reduce such security to an amount below that required to guarantee the campletion 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 fumishing labor, materials or equipment shall, at s+x (6) months after completion and acceptance of the work, be reduced to an amaunt equal to no less than 125% of the total claimed by all claimants for whom liens have been �ied 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 shatl be released upon the settlement of all claims and obtigations for which the security was given. (d) CITY may retain from any security released, an amaunt 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 shall replace or repair or have replaced or repaired, as the case may be, all public improvements, public utiiities facilities and surveying or subdivision monuments which are destroyed or damaged as a resuft of any work under this Agreement. DEVELOPER shatl bear the entire cost of replacement or repairs of any and ail 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 Ca(ifo�nia, or any agency or political subdivision thereof, o� by CITY or any public or private utility corporation or RMPUB\VCD'��760 . ', � �� '�"� � . � �� by any combination of such owners. Any repair or replacement shall be to the satisfaction, and subject to the approvat, of the City Engineer. $) Permits. DEVELOPER shaii, at DEVELOPER's expense, obtain al� necessary permits and licenses for the construction and installation of the improvements, give all necessary notices and pay all fees and taxes �equired by law. 9) Default of DEVELOPER. (a) Default of DEVELOPER shalt include, but not be limited to, (1) DEVELOPER's failure to timely commence construction of this Agreement; (2) DEVELOPER's failure ta timely complete construction of the improvements; (3) DEVELOPER's failure to timety cure any defect in the improvements; (4) DEVELOPER's failure to perform substantial construction work for a period of twenty (20) calendar days after commencement of the work; (5) DEVELOPER's insolvency, appointment of a receiver, or the filing of any petition in bankruptcy either voluntary or involuntary which DEVELOPER fails to discharge within thirty (30) days; (6) the commencement of a foreclosure action against the DEVELOPMENT or a portion thereof, or any conveyance in lieu or in avoidance of foreclosure; or {7) DEVELOPER's failure to perform any other obligation under this Agreement. RMPUB\VCD\760 s e �� (b) CITY reserves to itself all remedies available to it at law or in equity for breach of DEVELOPER's obligations under this Agreement. CITY shall have the right, subject to this Section, to draw upon or utitize the appropriate security to mitigate CITY's damages in event of default by DEVELOPER. The right of CITY to d�aw upon or utilize the secu�ity 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 constnaction or installation of the improvements and, therefore, CITY's damages for DEVELOPER's default shall be measured by the cost of completing the required imp�ovements. The sums provided by the improvement security may be used by CITY for the completion of the public imp�ovements in accordance with the improvement plans and specifications contained herein. (c) In the event of DEVELOPER's default under this Agreement, DEVELOPER authorizes CITY to perform such obligation twenty (20) days after mailing written notice of default to DEVELOPER and to DEVELOPER's surety, and agrees to pay the entire cost of such performance by CITY. CITY may take over the work and prosecute the same to completion, by contract or by any other method ClTY may deem advisabte, for the account and at the expense of DEVELOPER, and DEVELOPER's surety shall be liab(e to CITY for any excess cost or damages occasioned CITY thereby. In such event, CITY, without liability for so doing, may take possession of, and utilize in completing the work, such materiats, appliances, plants and other property belonging to DEVELOPER as may be on the site of the work and necessary for performance of the work. �pua�vcDveo ..� � � � (d) Failure of DEVELOPER to comply with the terms of this Agreement shali constitute consent to the filing by CITY of notice of violation against all proposed improvements in the DEVELOPMENT, or to rescind the approval or otherwise �evert the DEVELOPMENT to acreage. The remedy provided by this subsection (c) is in addition to and not in lieu of other remedies available to CITY. DEVELOPER agrees that the choice of remedy or remedies for DEVELOPER's breach shail be in the discretion of CITY. (e) in the event that DEVELOPER fails to pertarm any obligation hereunder, DEVELOPER agrees to pay all costs and expenses incurred by CITY in securing pertormance of such obiigations, including but not limited to fees and charges of architects, engineers, attorneys, other professionals, and court costs. (f) The failure of C(TY to take an enforcement action with respect to a default, or to declare a breach, shal! not be construed as a waiver of that default or breach or any subsequent default or breach of DEVELOPER. (10) DEVELOPER Not Agent of CITY. Neither DEVELOPER nor any of DEVELOPER's agents, contractors or subcontractors are or sha(I be considered to be agents of CtTY in connection with the performance of DEVELOPER'S obligations under this Agreement. (11) Iniury to Work. Until such time as the improvements are accepted by CITY, DEVELOPER shall be responsible for and bear the risk of loss to any of the improvements constructed or installed. Untit such time as all improvements required by this Agreement are fully completed and accepted by CITY, DEVELOPER will be responsible for the care, maintenance of, and any damage to such improvements. RMPUB\VCD\760 '��. I € s w �� , CITY shaU not, nor shall any officer or employee thereof, be iiabie 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 impravements. All such risks shaU be the responsibility of and are hereby assumed by DEVELOPER. (12) Environmental Warrantv. Prior to the acceptance of any dedications or improvements by CITY, DEVELOPER shalf certify and warrant that neither the property to be dedicated nor DEVELOPER is in violation of any environmental law and neither the praperty to be dedicated nor the DEVELOPER is subject to any existing, pending or threatened investigation by any federal, state or {ocal governmental autho�ity under or in connection with environmental law. Neither DEVELOPER nor any third party will use, generate, manufacture, produce, or reiease, on, under, or about the property to be dedicated, any hazardous substance except in compliance with all applicable environmental laws. DEVELOPER has not caused or permitted the release of, and has no knowledge of the release or presence of, any hazardous substance on the property to be dedicated or the migration of any hazardous substance from or to any other property adjacent to, or in the vicinity of, the property to be dedicated. DEVELOPER's prior and present use of the property to be dedicated has not resulted in the release of any hazardous substance on the property to be detiicated. DEVELOPER shall give prompt written notice to CITY at the address set forth herein of: (a) Any proceeding or investigation by any federal, state or local govemmenta{ authority with respect to the presence of any hazardous substance on the property to be dedicated or the migration thereof from or to RMPUBIVCD�7Go . k ��W.. .,g�' � :,� �. -:� 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 ta be dedicated relating to any loss or injury resutting from any hazardous substance; and, (c) DEVELOPER's discovery of any occurrence or condition on any property adjoining in the vicinity of the property to be dedicated that could cause the property to be dedicated or any part thereof to be subject to any restrictions on its ownership, occupancy, use for the purpose for which is it is intended, transferabitity or suit under any environmental law. (13) Other A reements. Nothing contained in this Agreement shatl preclude CITY fram expending monies pursuant to agreements concurrently or previously executed beiween the parties, or from entering into agreements with other developers for the apportionment of costs of water and sewer mains, or other improvements, pursuant to the provisions of the CITY ordinances providing therefore, nor shall anything in this Agreement commit CITY to any such apportionment. (14) DEVELOPER'S Obli ation to Wam Public Durin Construction. Until formal final acceptance of the improvements, DEVELOPER shall give good and adequate waming to the public of each and every dangerous condition existent in said improvements, and will take all reasonab(e actions to protect the public from such dangerous condition. (15) Vestina of Ownershin. Upon formal final acceptance of the work by C�TY and recordation of the Resolution of Acceptance of Public Improvements, RMPUBIVCD�,76p �.. ¢ a a , �' �y�, ownership of the improvements constructed pursuant to this Agreement sha{I vest in CITY. (16) Final Acceptance of Worlc. Acceptance of the work on behalf of CITY shall be made by the City Council upon recommendation of the City Engineer after final compietion and inspection of aU improvements. The City Council shali act upon the Engineer's recommendation within sixty {60) days from the date the City Engineer certifies that the work has been finaliy completed, as provided in Section (6). Such acceptance shall not constitute a waiver of defects by CITY. (17) Indemnity/Hold Harmless. CITY or any officer or employee thereof shafl not be liable for any injury to persons or property occasioned by reason of the acts or omissions of DEVELOPER, its agents, or employees, contractors and subcontractors in the perFormance of this Agreement. DEVELOPER further agrees to protect, defend, indemnify and hold harmless CITY, its officials, boards and commissions, and members thereof, agents and employees from any and all claims, demands, causes of action, liabiliry or loss of any sort, because of, or arising out of, acts or omissions of DEVEI.OPER, its agents, employees, cont�actors 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 aff'rcials, boards, commissions, the membe�s thereof, agents, and employees, including a1f claims, demands, causes of action, liability, or loss because of, or arising out of, in whole or in part, the design or canstruction of the improvements. This indemnification and agreement to hold harmless shall extend to injuries to persons and damages or taking of property resulting from the design or construction of said DEVELOPMENT, and the public improvements as provided herein, and in addition, to adjacent property owners as a consequence of the RMPUB\VCD176D �`":� , � ,� �_ �. � �.�r �»� diversion of waters from the design and construction of pub(ic drainage systems, streets and other public improvements. Acceptance by CITY of the improvements shaN 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 ptans 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 DEVE�OPER submitted to the City Engineer before approval of the particular improvement design, which objection indicated that the particular improvement design was dangerous or defective and suggested an altemative safe and feasible design. After acceptance of the improvements, the DEVEIOPER shail remain obiigated to eliminate any defect in design or dangerous condition caused by the design or construction defect; however, DEVELOPER shatl not be responsible for routine maintenance. Provisions of this Section shali remain in full force and effect for ten (10) years following the acceptance by CITY of the improvements. It is the intent of this Section that DEVELOPER shall be responsible for all liability for design and construction of the improvements installed or work done pursuant to this Agreement and that CITY shall not be liable for any negligence, nonfeasance, misfeasance or. malfeasance in approving, reviewing, checking, or inspecting any work or construction. The improvement security shall not be required to cover the provisians of this Section. DEVELOPER shall reimburse CfTY 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 pravisions of this Section. RMPUBIVCD'�,760 . �� - � � (18) Personal Natu�e of DEVELOPER'S Obliqations. Ali of � DEVELOPER's obiigations under this agreement are and shall remain the personal i obligations of DEVELOPER nofinrithstanding a transfer of all or any part of the property within the DEVELOPMENT subject to this Agreement, and DEVELOPER shall not be entitled to assign its obligations under this Agreement to any transferee of ail or any part of the property within the DEVELOPMENT or to any othe� third party without the express written consent of CITY. (19) Sale or Disposition of DEVELOPMENT. Seller or other DEVELOPER may request a novation of this Agreement and a substitution of security. Upon approval of the novation and substitution of securities, the DEVELOPER may request a release or reduction of the securities required by this Agreement. Nothing in the novation shall reiieve the DEVELOPER of the obligations under Section (17) for the work or improvement done by DEVELOPER. (20) Time of the Essence. Time is of the essence in the pertormance of this Agreement. (21) Time for Commencement of Work� Time Extensions. DEVELOPER shall commence substantial construction of the improvements required by this Agreement not later than six (6) months after the date of this Agreement. In the event good cause exists as determined by the 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 Enginee�. Any such extension may be granted without notice to DEVELOPER's surery 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 shail be the sole and final judge as to whether or RMPUB�VCIY�760 . _' "�j: ��. not good cause has been shown to entitle DEVELOPER to an extension. Delay, other than delay in the commencement of work, resutting from an act of CITY, act of God, or by storm or inciement weather, strikes, boycotts or similar political actions which prevents the conducting of wo�k, which DEVELOPER could not have reasonably foreseen and, furthermore, were not caused by or contributed to by DEVELOPER, shall constitute good cause for and extension of the time for completion. As a condition of such extension, the City Engineer may require DEVELOPER to fumish 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. �22) No Vestina of Riahts. Performance by DEVELOPER of this Agreement shalf not be construed to vest DEVE�OPER's rights with respect to any change in any zoning or building law or ordinance. �23) 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 DEVELOPER: � g� l�//�ff1�_��a�Aa��Gw 7 —„t''�'�'�`�� :�,�D d f�l !.A'�2 26 p Notice to SURETY:__ �,t��,.��: �,,�,,', ��f�. _ 73-eo o ihG,�fir,e,i !J/ RMPUBIVCD\�bp : � � � x �� ;�d�� . �' �� ¢'' (�� 5,�, � 9 2Z 6 r� � � � (24) Compliance With Laws. DEVELOPER, its agents, emp(oyees, contractors and subcontractors shall comply with all federal, state and locai laws in the performance of the improvements and land development work required by this Agreement. (25) Severabilitv. The provisions of this Agfeement 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. (26) 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. (27) 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 reasonab(e attorneys'fees. (28) Incorporation of Recitals. The recitals to this Agreement are hereby incorporated into in the terms of this Agreement. (2g) Entire A reement. This Agreement constitutes the entire agreement of the pa�ties 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. (30) {nterpretatian.This Agreement shall be interpreted in accordance with the laws of the State of Califomia. (31) Jurisdiction. Jurisdiction of all disputes over the terms of this Agreement shall be in the Counry of Riverside, State of Califomia. RMPUB�VCDt760 , ' e�� .. �s � IN WITNESS WHEREOF, this Agreement is executed by the parties as of the date hereinabove first written; by CITY, by and through its Mayor. 73�� G`/'��D I��'1� �,dI�NI L1•L C�Ty OF PALM DESERT DEVELOPER �� DEVE OPE BY' `;in,�� ~ �"'��^' MAYOR +AG.N 4..,6n1t�- (Proper Notarization of DEVELOPER's signature is required and shal{ be attached) ATTEST: C C ERK � APPROVED AS TO FORM: CI A NEY RMPUB\VCD\760 �, �� ;"�� , C�#1.#F+QRINIA ALL��URPQ:3E AC�1►NO�i�.E�GiI�CIEN"1� State of California � � � Couniy of � � On before me, ' �� ro ame e o r personally appeared 8� who proved to me on the basis of satisfactory evidence to be the person(,s�'whose name�islaFe-subscn'bed to the within instrument and acknowledged to me that he/�executed the same in his/#�e�eirauthorized capacity(jer�;and that by his�#�erAheir signature�a')'on the ��s•� fnstrument the person�or the entity upon behalf of �°"'"�w°n�►��9�2a which the persor�s�acted, executed the instrument. Notary PubNc-Ca�c�nMa ��11 MyCarun.�r,lutt�, I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS m nd an icial seal. , Signature �„�,�or N w� Place Nolary Seal Abwe OPTIONAL Though the rnformafion below is nof requlred by law,it may prove valuabJe to persons relyFrtg on the document and could prevent lraudulent removal and reaKachment of ihts torm fo another document. Description of Attached Document Titie or Type of Document: � Document Date: Number of Pages: Signer(s)Other Than Named Above: Capactty(ies) Claimed by Signer(s) °� Signe�'s Name: Signer's Name: ❑ Individuai 1�individuat 0 Corporate Officer—Title(s): O Corporate Officer�--Title(s): D Partner—C�Limited O Generat . _,, Ci Partner—�Limited ❑General � . . D Attomey in Fact • ' CI Attorney in Fact Tap��p�e Top oi lAumb here p Trustee D Trustee D Guardian or Conservator D Guardian or Conservator p Other: O Other: Signer Is Fiepresenting: Signer Is Representing: 0200�NauonalNotaryAssoemtlon•93500eSorok�a,P.Qear2402•Cfmtawortb.CA913132402•www.NatloneMldary.orq tremp5907 Reortfer.CaflTdl�Fros1�80d87&8827 ` � 73750 EL PASEO ��_._____ ___ ___ ________ , � - , r __� �.� � _ � ' APN:627171021 �j' � � _,.. ; � e . 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