HomeMy WebLinkAboutRelease Scrty - El Paseo Collection (73061, 73080, & 73081 El Paseo) CITY OF PALM DESERT
PUBLIC WORKS DEPARTMENT
STAFF REPORT
REQUEST: RELEASE MAINTENANCE SECURITY FOR 73-061, 73-080 and
73-081 EI PASEO
SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works
APPLICANT: EI Paseo Collection
73061 EI Paseo
Palm Desert, CA 92260
DATE: October 28, 2010
CONTENTS: Agreements
Vicinity Map
Recommendation
By Minute Motion, release maintenance security for 73-061, 73-080 and
73-081 EI Paseo.
Backqround
The subject properties are located on EI Paseo between Highway 74 and Ocotillo Drive.
A faithful performance and labor and materials deposit, which was originally posted for
the construction of the various public improvements, was released in October 2009. A
deposit was accepted for the one-year maintenance period as required by the Palm
Desert Municipal Code.
Staff has recently re-inspected this project to insure that all improvements remain as
they were originally accepted in October 2009. The one-year maintenance period is
now complete and staff recommends that the City Council authorize the release of the
maintenance obligation.
Staff Report
Release Maintenance Security for 73-060, 73-080 and 73-081 EI Paseo
October 28, 2010
Page 2 of 2
Fiscal Analysis
There is no fiscal impact associated with this action.
Prepared By: Departme t a .
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Christina Canales, Assistant Engineer Mark Greenw od, P.E.,
Director of P blic Works
CITY COUNCILACTION
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Paul S. Gibson, Director of Finance RECEIVED OTHF,R
MF.ETING DATE �-����U��
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infoCApalm-deserr.org
July 28, 2009
EI Paseo Callection, L.P.
c/a Churchill Pacific
73-061 EI Paseo, Suite 200
Palm Desert, Califarnia 9226Q
Dear Sir or Madam:
Subject: Improvement Aqreemen#for the Real Propertv Located atµ7w3=061i
EI Paseo
Enc[osed for yaur records is a fully executed copy of the Impravement Agreement. If you
have any questions or require additionaf information, �lease do not hesitate to contact us.
Sincere(y,
'����s�
RACHEL.LE D. KLASSEN, CMC �
CiTY CLERK
RDK:gIm
Enclosure (as noted)
cc�%���Christiria�Cariales,FAss�stan#�Eng�neer �
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IMPROVEMENT AGREEMENT
DATE OF AGREEMENT: Julv 7 , 2009
NAME OF DEVELOPER: EI Paseo Collection a Ca(ifornia fimifed partnership and
Ef Paseo Collection !! a California limited partnership
(referred to as "DEVELQPER").
NAME OF DEVEL.OPMENT: The Shops on EI Paseo-- EPCS Phase 1!
(referred to as "DEVELOPMENT"). ��
DEVELOPMENT RESOLUTION
OF APPROVAL NQ.: ResolutiQn N/A
(referred to as "Resolution of Appraval")
IMPROV�MENT PLANS NO.: Precise Gradinq Plan G-- i�
(referred to as "Improvement Plans"}.
ESTIMATE� TOTAL COST OF 1MPROVEMENTS:$ 76,356.0�
SURETY: N/A
LETTER OF CREDITlBUND NOS.: NIA
This Agreement is rrtada and enfered into by and be�tween the City of Palm Desert, a
municipaf corporation of the State of California, hereinafter referred to as "C1TY", and the
DEVELUPER.
RECITALS
A. DEVELOPER has presented to CiTY for approva[ a Conditional Use
Permif/Precise P(an of Development pursuant to provisians of #he CITY's
ordinances and regulations relating to development approval.
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B. A Conditional Use PermitlPrecise Plan of Development has been
approved, subject to #he requirements and conditians contained in the
Resolution af ApprovaL The Resolution of Approval is on file in�the O�ce of
the Director of Community De�elopment and is incorporated inta this
Agreement by reference.
C. In consideration of the approval of a Conditiona! Use PermitlP�ecise
Plan of Develapment for the DEVELOPMENT by #he Planning Commisio�,
DEVELOPER desires to en#er into this Agreement, whereby DEVELOPER
promises to install and camplete, at DEVEL�PER's own expense, all the
pubfic improvement work required by GITY in connection with the proposed
DEVELOPMENT. DEVELQPER has secured this Agreement by
improvement security required by the Ciry 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 lmprovement 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 �his reference. AfI
references in fihis Agreement to the Impravement Plans shall include
reference to any specifications for fhe improvements as appro�ed by the City
Engineer.
E. An estimate of the cost for canstruction of the public improvements
and pertorming land development work in connection with the improvements
according to the lmprovement Plans has been made and has been approved
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by the City Engineer. The estimated amount is stated on Page 1 of this
Agreement. The basis for fhe 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
tmprovements within the CITY. The Improvement Pfans have been prepared
in conformance with CITY sfandards in effect on the date of fhe Resolution af
Appraval.
NOW, THEREFORE, in consideration of the approva[ of the DEVELOPMENT,
DEVELOPER and CITY agree as follows:
1) DEVEl.OPER's ObfiQation to Canstruct Improvements.
DEVELOPER shafl:
(a) Comply with all the requirements of the Resolufion of Approval, and
any amendments thereto.
(b) Complete at DEVELOPER's own expense, all the public improvemenf
work required by the Reso[ution of Approval in conformance with approved
Improvement Plans within one year from date of execution of this Agreemenf.
(c) Furnish the necessary materials for campletion of fhe public
impravements in conformity with the (mprovement Plans.
(d) Acquire, or pay fihe cost of acquisition by ClTY, and dedicate aEl
rights-of-way, easements and other interests in real property for construction
and insta(fafion of the public improvements, free and clear of all liens and
encumbrances. The DEVELQPER's obligations with regard �o acquisition by
CITY of off-site rights-af-way, easements and ather interests in real proper-ty
RA�tPUBSVCD\760
shall be subject to a separate agreement taetween DEVELOPER and CfTY.
DEVELOPER shall also be responsible for obtaining any public ar private
sanitary sewer, domestic water, drainage, and/or utility easements or
authorization to accommodate tF�e DEVELOPMENT.
(e) Commence construction of the improvements by the time es#ablished
in Section {21} of this Agreement and complete the improvements by the
deadline stated in Section (1)(�) abave, unless a time extension is granted by
fhe CITY as aufhorized in Sectian (21}.
2) Acquisition and Dedication of Easements or Rights-of-Way. If any of the
public irr�provement and land use develapment work contemplated by this
Agreement is to be constructed or installed on land not owned by CITY or
DEVELQPER, no c4nstruction or installation shal( be commenced before:
(a) The affer of dedication to CITY of appropriate rights-of-way,
easements or other interests irt real property, anc! appropriate authorization
from the property awner to al[ow consfiruction or insfallation of the
improvements ar work, or
{b} The dedication to, and acceptance by, CITY af appropriate rights-af-
way, easements or oti�er interests in real praperty, as determined by the City
Engineer, or
(c) The issuance by a court of competent jurisdiction pursuant to the State
Eminent Damain Law of an order of possession. DEVELOPER shall comp{y
in ali respects with the order of possessian.
turtrua�vCpneq
Nothing in this Section (2) shail be construed as authorizing or grantrng an
extension of time to DEVELOPER.
3) Security. �EVELOPER shall at all times guarantee DEVELOPER's
performance by furnishing to CITY, and maintaining, good and sufficient security as
required on forms approved by CITY for fhe purposes and in the amounts as follows:
(a) to assure faithful performance of this Agreement in regard to said
improvements in an amount of 10Q% of fhe estimated cost of the
improvements; and
(b) to secure payment to any contractor, subcontractor, persons renting
equipment, or furnishing labor and materiats for the improvements required to
be constructed and instalted pursuant to this Agreement in the additiona!
arrtount of 50% of the estima#ed cost of the improvements; and
The securities required by this Agreemenf shal! be kept on file with the City
Clerk. The terms af the security documents referenced on page 1 of this
Agreement are incorporated into fhis Agreement by #his 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 Cify Clerk and, upon filing, 3}
shalf be deem�d to have been made a part of and incorporated into this
Agreement. Upon provision of a replacement security with the Ciiy �ngineer
and filing of a replacement security with the City Clerk, the former security
may be released.
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4} Alterations to Improvement Plans.
(a) Any changes, alterations or additions to the Improvement Plans not
exceeding ten percent {10%) of the original estimafed cost of the
improvements, which are mutually agreed upon by CITY and DEVELOPER,
sha!! not relieve the irnprovement security given for faithfui performance of
this Agreement. In the event such changes, alterations, or additions exceed
10°!0 of the ariginal estimated cost of the improvemenf, DEVELOPER sha{{
provide improvement security for faithfu! perfarmance as required by 5ection
(3) of this Agreement for one hundred percent (100%) af the total estimated
cost of the improvements as changed, altered, or amended, minus any
completed partial releases allowed by Section (6) of this Agreement.
(t�) The DEVELOPER shall construct the improvements in accordance
with CITY standards in effect at the time of adoption of the Resolufion af
Approval. CITY reserves the right to modify the standards applicable to the
DEVELOPMENT and fhis Agreement, wF►en necessary to protect the public
safety or welfare or comply with appficable state or federal law or CiTY
zoning ordinances. !f DEVELOPER requests and is granted an extension of
time far completian of the improvements, CITY may apply the standards in
effect at the time flf the extension.
5} Inspecfion. DEVELOPER shall at all times maintain proper facilities and safe
access for inspection of the public improvements by C1TY inspectors and to the
shops wherein any work is in preparation. Upon completion of the work,
DEVELUPER may request a final inspection by the City Engineer, or the City
�rus�vcrn�bo
Engineer's authorized representative. If the Cify Engineer, or fhe designated
representative, determirtes that the work has been compEeted in accordance with this
Agreement, then the City Engineer shall certify the completion .of the public �
impro�ements fo the City Couneil. No improvemenfs shall be finally accepted unless
all aspects of the work have been inspected and completed in accordance with the
Improvement Plans. When appficable !aw requires an inspection to be made by City
at a particular stage of the work af constructing and instalfing such improvements,
CITY sha(! be given timely notice of DEVELOPER's readiness for such inspection
and DEVELOPER shall nat proceed with additional work unti( the inspecfion has
been made and the work approved. DEVELOPER shal! bear all casts of inspection
and certification. No improvemenfs 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
agreem�nt shall be released upon the fina( comp(etion and acceptance of the
act or work, subject to the provisions of subsection (b} hereof.
{b) The City Engineer may release a portion of #he security given for
faithful perFormance of improvement work as the improvement progresses
upon app(ication thereof by the DEVELOPER; provided, hawever, that no
such release shall be far an amount less than twenty-five percent {25%) of
the total improvement security given for faithful pertormance of the
improvement work and fhat the security shal! not be reduced fo an amount
less than fifty percent (50%} of the total improvement securify given for
faithful perFormance until final campletion and acceptance of the improvement
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work. In no event shall the City Engineer authorize a release of the
improvement security which would reduce such securify to an amount below
that required to guarantee the completian of the improvement work and any
ofher obfigation 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 ta
an amount equal to no less than 125% of the to#al claimed by all c(aimants 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 fo
assure the perFormance of any other obiiga#[ons secured by the Security. The
balance of the security sha!! be released upon the settfement af all ciaims and
obligations for which the security was given.
(d} CfTY may retain from any security released, an amount sufficient to
cover casts and reasonabie expenses and fees, including reasonable
attorneys' fees.
7) Injury to Public Impravements, Public Property or Public Ufilities
�acilities. DEVELOPER shall replace or repair or have replaced or repaired, as the
case may be, all public improvements, pubfic ufilifies facilities and surveying or
subdivision monuments which are destroyed or damaged as a result of any work
under this Agreement. DEVELOPER shall bear �he entire cost of replacement ar
repairs of any and all public ar public utility property damaged or destroyed by
reason of any work dane under this Agreement, whetf�er such property is owned by
the United States flr any agency thereof, or the Sta#e of California, or any agency or
political subdivision thereaf, or by CETY or any public or private ufiilifiy corporation or
ItMPU81VCD1760
by any combination of such owners. Any repair or rep[acement shall be to the
satisfaction, and subject to the approva[, of the City Engineer.
8) Permits. DEVE�OPER shail, at DEVELOPER's expens�, obtain all
necessary permits and licenses far the construction and installation of the
improvemsnfs, give all necessary notices and pay afl fees and taxes required by faw.
9} Default of DEVELOPER.
(a) Default of DEVELOPER shall include, but not be limited to,
(1} DEVELOPER's fai(ure to timely commence construction of this
Agreemen#;
(2) DEVELOPER's failure to timely camplete consfruction of the
improvements;
{3} DEVEL4PER's failure to timely cure any defect in the
improvements;
(4) DEVELOPER's failure t� perform subsfantia[ construction work for
a periac� of twenty (20) calendar days after commencement of the
worEc;
(5) DEVELOPER's insolvency, appointment of a receiver, ar the fr(ing
of any petition in bankrupfcy either valuntary or involuntary which
DEVELOPER fails to discharge within fhirty(30) days;
(6} the commencement af a foreelasure action against fhe
�EVEL(�PMENT or a portivn thereof, or any conveyance in lieu or in
avoidance of foreclosure; or
(7} DEVELOPER's failure to perform any other obligation under this
Agreement.
�rue�vco�7�o
{b} CfTY reserves to itself all remedies availabie to it at law or in equity for
br�ach of DEVELOPER's o6ligations under this Agreemenf. CITY shall have
the right, subject ta this Section, to draw upon ar uiilize th� appropriafe
security to mitigate CITY's damages in event of defaulfi by DEVEL�PER. The
right of CITY to draw upon or uti(ize the security is additional ta and not in lieu
of any other remedy available to CITY. lt is specifically recognized that the
estimated costs and security amounts may not reflect the actual cost of
construction or insta!lation of the improvements and, therefore, CITY's
damages for DEVELOPER's default shall be measured by the cost of
completing the requ�red 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
confained herein.
(c) ln the evant af DEVELOPER's defatalt und�r this Agreement,
DEVEL�PER autho�izes CITY to perForm such obligation twenty (20) days
after mai(ing written notice of defaul# to DEVELOPER and to DEVELOPER's
surety, and agrees to pay the entire cost of such pertormance by CITY.
CITY may take o�er #he work and prosecute the same ta completion, by
contract ar by any other method CITY may deem advisable, for the account
and at the expense of DEVELOPER, and DEVELQPER's surety shall be
liable to CITY for any excess cost or damages occasioned CiTY thereby. In
such event, ClTY, without liability for so doing, may fake possession of, and
utilize in completing the work, such materials, appliances, plants and other
property belonging to DEVELOPER as may be on the site of the work and
necessary for perfarmance af the work.
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(d) Failure of DEVELOPER to comply with the terms of this Agreement
shall constitute consent to the fi(ing by CITY af notice of violation against aIl
proposed improvements in the DEVELOPMENT, or to rescind the approvaf or
otherwise re�ert the DEVELOPMENT to acreage. The remedy provided by
this subsection (c} is in addition to and not in lieu of ofher remedies available
to CITY. DEVELOPER agrees that fhe choice of remedy or remedies for
DEVELOPER's breach shall be in the discretion of CITY.
(e) In fihe even# that DEVELOPER fails to perform any obligation
hereunder, DEVELOPER agrees to pay a(I costs and expenses incurred by
CITY in securing perFormance of such obligafiions, including but nat limited to
fees and charges of architects, engineers, aftorneys, other professionals, and
COUC�GOS�S.
(f� The failure of CITY to take an enforcement action with respect to a
default, or to dec(are a I�reach, shall not be construed as a waiver of tE�at
default ar breach or any subsequent clefault or breach of DEVELOPER.
(10) DEVELOPER Not Agen# of CITY. Neither DEVELOPER nor any of
DEVELOPER's agen#s, contractors or subcontractars are or shall be cansidered to
be agents of GITY in connection with the perFormance of DEVELOPER`S obligations
under this Agreement.
(11} Iniury to Wark. Until such time as the improvements are accepted by
C(TY, DEVELOPER 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 fu11y compfeted and accepted by CITY, DEVEL�PER wiU be
responsible for the care, maintenanc� of, and any damage to such irnprovements.
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CITY shall nof, nor shall any officer or employee thereof, be [iable or responsible for
any accident, loss or damage, regardless af cause, happening or occurring to the
work or improvements specified in this Agreement prior to the cor-rmpletion and
acceptance af the work or improvements. Afl such risks shafl be the responsibility of
and are hereby assumed by DEVELOPER.
(12� Environmenta[ Warranfv. Prior to the acceptance of any dedications
or impravements by CITY, D�VELOPER shafE certify and warrant that neither #he
praperty to be dedicated nor DEVEL�PER is in vio(ation of any enviranmenta! law
and neither the property ta be dedicated nor the DEVELOPER is subject to any
exisfing, pending or threatened invesfiigation by any federal, state or local
governmental aufihority under or in connection with environmental law. Neither
DEVELOPER nor any third party wifl 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. DEVELQPER has not
caused or permitted the release af, and has no knowledge af the release ar
gresence of, any hazardous substance on the proper�y to be dedicated or the
migration of any haxardous subsfance from or to any other property adjacent to, ar in
the vicinity of, the property to be dedicated. DEVEL�PER's priar and present use of
the property to be dedicated has not resulted in the release o# any hazardous
substance on the property t� be dedicated. 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 [ocal
governmental authority with respect to the presence of any hazardous
substance on the property ta be dedicated or the migration thereof from or to
xhrnua�vcrn�6o
any ofher property adjacent to, or in the vicinity of, the properiy to be
dedicated;
{b) Any claims made or threa�ened by any third party agains# CITY or the
property to be dedicated relating to any foss or injury resulting 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 purpase for which is it is
intended, transferability or suit under any environmental faw.
(13) Other Agreements. Nothing confained in this Agreement shall
preclude CITY from expend'tng monies pursuant to agreements cancurrently or
previously executed between the parties, or from entering into agreemenfs with other
developers for the appartionment af costs o# water and sewer mains, or other
improv�ments, pursuant to the provisions of the C(TY ardinances providing
therefore, nor shall anything in this Agreement commit CITY ta any such
apportionment.
(14) DEVELOPER'S Obliaation to Warn Public Durinq Cons#ruction. Until
formal final acceptance of the improvements, DEVELOPER shafl give good and
adequate warning to the public of each and every dangerous candition existent in
said improvements, and will take a!! reasonable actions to pratect the public from
such dangerous condition.
(15) Vestinct of Ownership. Upon formal final acceptance af the work by
CITY and recordation of the Resolution of Acceptance of Public Improvements,
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ownership of the improvements constructed pursuant to this Agreement shall vest in
CITY.
(16} �inal Acceptance af Work. Acceptance of the work on behai€ 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 dafe fhe City
Engineer certifies that the wark has been finally campleted, as provided in Sectian
(6). Such accepfance shall not constitute a waiver of defects by CITY.
{97) Indemnity/Hold Harmless,. CITY or any officer or emp[oyee fhereof
shaf( �a# be Iiable for any injury to persons or property occasioned by reason of the
acts or omissions of DEVELOPER, its agents, ar employees, contractors and
subcontractors in the performance of this Agreement. DEVELOPER further agrees
to protect, defend, indemnify and hofd harmless ClTY, its officials, baards and
commissions, and members thereof, agents and employees from any and all claims,
demands, cause5 of action, liabilify or loss of any sort, because of, or arising out of,
acts or amissions of DEVELOPER, 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 sofe active negligence
of the CITY, its officials, boards, commissions, the members thereof, agents, and
employees, inc(uding a!f claims, demands, causes of action, liabitity, or [oss because
af, or arising aut af, in whole or in part, the design or construction of the
improvements. This indemnification and agreement#o hofd harmless shafl extend to
injuries to persons and damages or taking of property resulting from the design or
canstruction of said DEVELOPMENT, and the public improvements as provided
herein, and in addi�ion, to adjacent property owners as a consequence of the
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diversion of waters from th� design and construction of public drainage systems,
streets and ofher pubfic improvements. Acceptance by CfTY of the improvements
shall not constitute an assumption by CITY of any responsibifity for any damage or
taking covered by this Section. CITY shall nat be respansible for the design or
construction of the property #o be dedicated or the improvements pursuant ta the
approved improvement plans or map, regardless of any negligent action or inac#ion
tak�n by CITY in approving the plans or map, unless the particu(ar improvement
design was specifically required by CfTY over written objectian by DEVELOPER
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 suggesfied an alterna#ive safe and feasible design.
After acceptance of the improvements, the DEVELOPER shall remain
obligated to eliminate any defect in design or dangerous condition caused by the design or
constrttction defect; however, DEVEL�PER shall not be responsible €or routine
maintenance. Provisions of this Section shall remain in full farce and effect for ten (10)
years fa[lowing the acceptance by CITY of the improvements. It is the intent of this Section
#hat DEVELOPER shall be respansible for all liability for design and construction of the
improvements installed or work dane pursuant to this Agreemenf and that CITY shafl nat be
liable for any negligence, nonfeasance, misfeasance or maffeasance in approving,
reviewing, checking, or inspecting any work ar constructian. The impravement securify
shall not be required fo cover the provisions of this Section.
DEVELOPER shalf reimburse CITY far all costs and expenses (including but not
limited to fees and charges of architects, engineers, aftorneys, and other professionals, and
court costs) incurred by CITY in enforcing the provisions of this Section.
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�
(18) Personal Nature of DEVELOPER'S Obliaations. All of
DEVELOPER's abligations under this agreement are and shall remain the persanal
obligations of DEVEL4PER notwithstanding a transfer of al! or any part of the
property within the DEVELOPMENT subject to this Agreement, and DEVELOPER
shall not be entifled #o assign its obligatians unc�er this Agreemenf to any transferee
of all or any part of the property within the DEVELOPMENT or to any other third
party without the express written consent of CITY.
{79} Sale or Disposition of DEVELOPMENT. Seller or ofher DEVELOPER
may request a novation of fhis Agreement and a substitution of security. Upon
approva# of the novation and substitution of securities, the DEVEL�PER may
request a release or reduction of the securities required by this Agreement. Nathing
in the novation shall relieve 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 per€ormance of
this Agreement.
(21) Time for Commencement of Work� Time Extensions. DEVELOPER
sha(l cammence subs#antial construction of #he improvements required by this
Agreement not later than six (6) months after the date of this Agreemenf. In fhe
event goad cause exists as deterrr�ined by the City Engineer, the time for
commencement of construction ar eampletion 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 DEVELOPER's surefiy and shall not affecfi the
validity of this Agreement or release the surety or sureties an any security given for
this Agreement. The City Engineer shalE be the sole and fina(judge as to whether or
RMPUBIVCDt760
not goad cause has been shown to entit(e DEVELOPER to an extension. Delay,
other than clelay in the commencement af work, resulting from an act of CITY, ac� of
God, or by storm or inclement weather, strikes, boycotts or similar politicaE actions
which prevents the conducting of woric, which DEVELOPER cou(d not have
reasonably foreseen and, furthermore, were not caused by or contributed to by
DEVELOPER, shafi constitute good cause for and extension of the time far
compfetion. As a condition of such exfension, the City Engineer may require
DEVELOPER to furnish new securi#y guaranteeing performance of this Agreement
as extended in an increased amount as necessary to compensate for any increase
in construction casts as determined by the City Engineer.
(22) No Vestin of Ri hts. PerFormance by DEVELOPER of this
Agreement shall not be construed to vest DEVELOPER's rights with respect to any
change in any zoning or bui(ding law or ordinance.
(23) Natices. All notices required ar provided for under this Agr�ement
shall be in writing and delivered in person or sent by maii, postage prepaid and
addressed as pravided in this Sectian. Natice shall be effective on the date it is
delivered in person, or, if mailed, on the dafe of de�osit in the United States mail.
Notices sha[I be addressed as follows un[ess a written change of address is filed
with fhe City:
Notice to CITY: City of Palm Desert
73-51{} Fred Waring Drive
Palm Desert, California 92260
Attn: Public Works Director
Notice to DEVELOPER: EI Paseo Collection, a Ca(ifornia limited partnership and EL
Paseo CoHection fl, a California limited partnership
C/a Churchil[ Pacific
73-061 EI Paseo, Suite 2q0
Palm Deser�, CA 92260
Natice to SURETY: N/A
RMPUBlVCD1760
�
(24) Comuliancs With Laws. DEVELOPER, its agents, �� employees,
contractors and subcontractors shalf comply with a(! federal, state and locaf laws in
the performance of the improvements and land development work required by this
Agreemenfi.
(25) Severabilitv. The provisions of this Agreement are severabfe. If any
portion of this Agreement is held inva(id 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 cansent of the parties.
{26} Captions. The captions af this Agreement are for convenience and
reference onEy and shall not define, explain, modify, limit, exempli�fy, or aid in the
interpretation, construction or meaning of any provisions of this Agreement.
(27) Litiaation or Arbitration. In the evenf that suit or arbitratian is brought
to enforce the terms of fhis Agreement, the prevailing pa�ty shall be entitled to
litigatian costs and reasonabie attorneys'fees.
{28) Incorporafion of Recitals. The recitals to fhis Agreement are hereby
incorporated into in the terms of this Agreement.
(29) En#ire AQreement. This Agreemen# constitutes the entire agreement
of the parties witi� respect to the subject matter. All madifications, amendments, or
waivers af the terms of this Agreement must be in writing and signed by the
appropriate representatives of the parties.
(30} Interaretafion.This Agreement shal! be interpreted in accordance with
the laws of the State of California.
RMPUBIVCD\760
(31} Jurisdiction. Jurisdiction of a!1 disputes over the terms of this
Agreement shall be in the County of Riverside, State of Ca(ifornia.
IN WITNESS WH�REOF, this Agreement is executed by the par#ies .as of the date �
hereinabove first written; by CITY, by and through its Mayor.
ELPaseo Collection, CITY OF PALM DESERT
A California limited par�nership
By: Fern Family Properties, LLC
General Partner gy. ,�1'�,k,�'G�
MAY�R
By:
Fre . ern, Manager
ELPaseo Col(ection !I, ATTEST:
A California limi#ed partnership
By: Fem Family Proper�ies, LLC
General Pa n
By: �
��
�red A. Fern, Manager CI CLERK
DEVELOP�R
{Proper Notarization of APPROVED AS T� FORM:
DEVELOPER's signature is
required and shall be attached} �
,
C1TY ATT NEY
RMPUBIVCD176U
C1��.���8i$t+�6,� 18LL-$9U�$P���� ,�t:��1t��iY�.�6.�C��fEA�'g"
State of Ca[ifornia -
County of �bS �tnG���p S
On �Ul� '7, 200�v befiareme, i'A7rc,�ci� �nn �Ln�tqU�S"�" �d� �b�1G
Meiu Insert Name nd Tiqe of the Ot�icer �
oato �
personallyappeared �'�d- �• �et�.n
rvarnets�or ynens�
who proved ta me on the basis of satisfactory evidence to
be the �erson�s) whase name(s) is/are subscribed to the
within instrument and acknowiedged to me that
helshe/they executed the same ir� his/her/their authorized
���t�� capaciry(fes}, and#hat by h9s/her/their signature(s) on the
Cotnm�rion�179q�u instrument the person(s}, or the entity upon behaEf of
� �°ry����i��t � which ti�e person(s) acted, ex�cufed the instrumen#.
� la A�l�GouMy .
���'����g r I certify under PE3�ALTY OF PERJUR`� under the laws
of the State af California that the foregoing paragraph is
true and corr�ct.
WfTNESS nd and o 'clal s I.
Signature G�'�'('�' .�
Placo Naary Sea1 above SI alure oi Pu ic
t?PT7CINAL
Though the information below is rtot required hy law,it may prove valuabJe to persorts refytrrg an the dacument
and caould prewent fraudulent r�moval 8nd reaitschment of lhis fom►to another documsnt �
Descriptipn o�Attached�ocument
Title or Type ot Document
Document Date: Plumber of Pages:
5igner(s}Other Than Named Ab�ve:
Capacityties)Claimed by Signer(s) - �
Signsrs Name: Signsr's IVame:
D individual ❑Indiv�dual
� Carporate Officer—Title(s): ❑Corporate Oificer—TitEe(s):
❑ Partner—C7 limited ❑General ❑Partner--O L.imited ❑Genera!
0 Ait�rney in Fact • -. p Attorney in Faci o �
❑ Trustee Top of thumb here ❑-�rustee 7op of thumb here
❑ �uardian or Conservator ❑Gusrdian or Conservator
� Other: • �Other:
Signer ts Representing: Signer Is Representing:
O2fl0T NaUonel Nolery AssaGrsHwr•9350 Qe Sato Ava,P.0.8ox 2442�Chatswath,CA 9i3IS-24p2•yaqNNaIIonalNotaryarQ [lem N5907 Rnotdar.CaY'FoN-Fcee1�800-8�&6827
73-080 EL PASEo
� � ��
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i �
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73-061 & 73-081
EL PASEO
TUMBLEWEED LN
��YAI.MD�S
G''���`'`� VI C I N I TY N�AP
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'�,� • -' o,`,�' DATE: e
���'� 9/2009 1 inch = 100 feet �irri�r i�-v nn e n