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Home My WebLink AboutRelease Maint Secrty - PM 29888 CITY OF PALM DESERT PUBLIC WORKS DEPARTMENT STAFF REPORT REQUEST: RELEASE MAINTENANCE SECURITY FOR WARING MEDICAL AND PROFESSIONAL PLAZA (PM 29888) SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works APPLICANT: Choice Enterprise Real Estate and Investment Co., Inc. 74-923 Highway 111, Ste. 114 Indian Wells, CA 92210 DATE: September 23, 2010 CONTENTS: Trust Deposit Agreement Vicinity Map Recommendation By Minute Motion, release maintenance security for Choice Enterprise Real Estate and Investment Company for Waring Medical and Professional Plaza (PM 29888). Backqround Waring Medical and Professional Plaza is located on the north side of Fred Waring Drive, 330 feet west of Fairhaven Drive. A deposit, which was originally posted for the construction of the various public improvements and grading, was released in September 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 September 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 Waring Medical and Professional Plaza (PM 29888) September 23, 2010 Page 2 of 2 Fiscal Analysis There is no fiscal impact associated with this action. Prepared By: Departme t ea : 1n� N— �YY I �� Christina Canales, Assistant Engineer Mark Green ood, P.E., � Director of Public Works � ��'�'�'''?C"VC'l�,ACTr�'�r � ;�R'f'!��4 1�:i 6__-__, ✓ __� �E� '�!�;� �'�?l'�?�1�e,:1) _.�_ t:"�'?�d�;1� aul S. Gibson, Director of Finance -- �--�------- 11�1��"�'t Iv�t�� UATF; �-�3-,��/c� ' A��'�,;5: � E;ls� �e�r� �«e'a�e .. l�1 ��/c��. �+��:�f:��12 e / ---�--�-._.._ � Sf)1 P!�P� /-i 7�r�_ � p� ��s�N�r: � ,. � Ad3STAIN:�. VERIFiEU i,y; i M. WOhlmuth, City Manager r��nal on File with City Clcrk s Of�ce � ! i k � „ :,.. . . - - . . � -. �?r . . � : - t � .�� . :.:.+�'�� . . . . -. . ... .�. .� �.-: . � .� -. :.`... _ � . �. . � � CITY OF PALM DESERT �� TREASURER'S RECEIPT FOR TI�UST DEPOSIT ' , : �.� DATE "`,�`�� .�: AMOUN'I' �-`�� • '"v: ; . _ DEPOSITOR'S NAMB : ,,�".� ", .� � ,�a,� � �`�;. �.��J�''"�w;�c`:: ' S REASON FOR DEPOSIT ' "� '`"'��;;'� `.��`' x�'��.�;' ,� ;'��;'��'.,s r..��:... �:.` � ;;�r.��» ;� %; . � � . 5 tr.-•.`�J D�^4�,,." d' �,J� ,t�,.� {�:�'�..1 f :�..f"E,�,'.r � �'.� d,. ��...r`. �y,�t.!' r. . . RECEIVED BY . :� :` • �` .E r'',.::� , ,k',� F . � , _ ACCOUNT NUIVIBEIZ(circle one): 610-0000-228=XX=00 01 , Deposit in Lieu of Bond,�,�� 13` Rent Review Commission 25 TUMF . pr:. ,�_.-..,,, E , , �.02'� ""<."Ivlon�nieiiYation �4 :Candidates Depa'sit 26 03, CurU and Gutter 15 Mitigation Fringe Lizard 27 04 . Grading Bond ; 16 ' Special Events` . , 28 Q5 Derriolition Bond 17 Children's Choir : ' 29 Q6 ' Fai�ful Perfoririaince Bond 18 3�': Acquisition of Property 07 Misc:One-Time DeposiE 19 31 ' OS Filming Permit 20 32' - 09 Parking AuEllority. Deposit 21 33 PubIic Facility,Use 10 5un Bus Passes 22 34. Employee Donatians 11.` Landscape Symposium 23' Median Const/Landscape 35 DSUSD School Impact 12 Sheriff Fingerprints . 24 Art Essay Contest� 5010 : Community Wallc TS THE DEPOSIT REFTJNDABLE? YES �"' NO C4NDITIONS TU BE MET BEFORE REFUNDI�TG DEi'OSIT? ` � '�{';� r ;t , y� Lp{ . .. ��t/l r, + .��:�� .2� ?`�'�,.hr '`�� , ��'�.�':t'.�{.. F`��'"i-;:'� J +�f.�-,F X��l��i .. .'•i ,�,,1'.:�..-„} w'�.,.�t ":�° ' . d f. AIvIQUNT REPUNDABLE ,-k�`. .*��-. •�.� �`"'� % DATE TO BE REFUNDED ` 1vIATL REFUND TO: �'.,r`�. :.�'� "' ��.��..r �� ,,,� .%"#':�s �°=,, ,. � : , '� � �,,::;f�'��; �I'�� i �s.J ��"f/1...�: .�.�� ''��:.`e r F '7f'w;:.,: A'�*-S'^ � }� �, j �� - . � .:.-' M ?�� '..�-r�� .i-'ir'{�,�� ,_�. t i�'�J�..�. . . . � � FINANCE DEPARTMENT USE ONLY `� DATE R��UNDED CHECK NO: AIvIOUNT NOTE:ATTACH TAPE SHOWINGxCALCULATION OFINZ'EREST,EARNED,IFANY.` �p�r: �� : T+��,�� `� i�'��se�^s � - . ` :" 4at�:`. li�l� � ��+r�i�� n�; %7�+'3 . ' 1� i�.�� '�?a��' � �`��c�i'„� Tt��n� :�itr�F�rs �'?i�� ; �C,`� �£�.� �i�a7�,� Tr�nx da�� _. �t��1� g�s�� ika�a3� WIfP-PAY02 GRM=TRUSTACGT CAN-ACCOUNi'[NG PINK-NUM.CONTROL G.20D-:(SSUINGDLI''['. _; ... SUBDiVdSl0�9 I�IiPRO!lEf�lE6�T AG��EG�iEEt#T DATE �F AGREEMENT: June 06 , 2006 . NAME OF SUBDiVlDER: Choice Enterprise Real Estate & lnvestment Co., Inc. (referred to as "SUBD�VlDER"). ��y �� Waring Medical And NAME OF SUBDIVISION: Professional Plaza No. of Lots: 3 (refer�ed to as "SUBDiVlSION"). ~ Pr� TENTATIVE MAP RESOLUTION t�F APPROVAL NO.: NIA ('I`�No: 298$8� (referred to as "Resolution of Appravaf") IMPROVEM�NT PLANS APPROVED ON:_January 2006 � (referred to as "Improvement Plans"). ESTIMATED TOTAL COST OF IMPROVEMENTS:$90,346.Q0 ESTIMATED TOTAL COST OF MONUMENTATION:�3;048:@@� ��Q. �� S U RETY: BOND N4S: Faithfui PerFormance & Labor& Materials Bond#661117$72 SURETY: Lincoln General lnsurance Company -O R- iRREVOCABLE STAND-BY LETTER O� CREDIT NO."see bonding" FINANCIAL INSTITUTION: � -OR- CASH/CERTIFICATE C?� DEP�SIT, AGREEMENT DATED: FiNANCIAL 1NSTITUTION: This Agreement is made and entered into by and between the City of Palm Desert, a municipal corparation of the State of California, hereinafter referred to as "CETY", and the SUBDlVIDER. RIECITALS A. SUBDIVIDER has presented to CITY for approval and recordation, a final subdivision map of a proposed SUBDfV1510N pursuant ta provisions of the Subdivision Map Act of the State of California and the CITY's ordinances and regufations relating to the fiiing, approvaf and recordation of subdivision maps. The Subdivision Map Act and the CITY's ordinances and regulations reiating 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 SUBDIVlSION has been approved, subject to the Subdivision l.aws and to the requirements and conditions contained in the Resolution of Approval. The Resofution af Approvai is on fi{e in the Office of the City Clerk and is incorparated into this Agreement by reference. C. Th�Subdivision Laws establish as a condition precedent to the approval of a final map that SUBDIVI DER must have complied with the Resolution of Approval and must have either{a)completed, in compliance with CITY standards, all ofthe improvements and land development work required by the Subdivision Laws or the Resoiution of Approval or {b) have en�ered into a secured agreement with ClTY to comptete the improvements and land develapment within a period of time specified by C1TY. 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 SUBDfVfDER promises #o install and complete, at SUBDIVlDER's own expense, all the pubtic improvement work required by CITY in connection with the,proposed SUBDIVISION. SUBDIVIDER has sec�red this Agreement by improvement security required by the Subdivision Laws and approved by the City Attorney. RRIPUB\pJE\I597 -2- E. Complete Improvemenf Plans for the canstruction, 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 �ffice of the City Engineer and are incorporated into this Agreement by this reference. All references in this Agreement#o the fmprovement Plans shall include reference to any specifications for the improvements as approved by the City Engineer. F. An estimate of the cost for canstruction of the public improvements and � performing #and devefopment work in connection with the improvements according to the lmprovement Plans has been made and has been approved by the City Engineer. The estimated amount is stafied an 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 installa#ion af improvements within �he CITY. The Irnprovement Plans have been prepared in conformance wi#h CITY standards in effect on the date of the Resolution of Approvaf. H. All public improvement monuments, street signs, and stakes as specified on the final map are fio be completed prior to fina! fiormal acceptance by the City Council. Individual property monuments must be instafled within one year from the formal final Council acceptance of said SUBDIVISION. I. SUBDIVIDER recognizes that by approval of the final map for SUBDIVIS!{JN, CITY has conferred subsfiantial rights upan SUBDIVIDER,inciuding the right to sell, lease, or finance lots within the SUBDIVISfON. As a result, CITY wilk 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 R\fPU61DJElIS97 _3- Agreement. CITY shaii be entitled to all remedies avaiiable to it pursuant to this Agreement and law in the event of a defiault by SUBDIVIDER. It is specifically recognized that the determination of whether a reversion to acreage or rescissian of the SUBDIVISiON constitutes an adequate remedy for default by the SUBDlVIDER shai! 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, SUBDfVIDER and C(TY agree as follows: {1) SUBDiVIDER's Obliaation to Construct Improvements. SUBDIVIDER shall: (a) Comply with all the requirements of the Resolufiion of Approval, and any amendm�nts thereto, and with the provisions of the Subdivision Laws. (b) Compiete at SUBOiVIDER's own expense,all fihe public improvement work required by the Resolution of Approval in conforrnance with approved Improvement Plans withirt one year from date of executian ofthis Agreement;provided however,thatthe improvements shali not be deemed to be completed until accepted by City Council as provided in Section (17} herein. (c) Furnish the necessary materials for completian of the public improvements in conformity with the Improvement Plans. {d) Acquire, or pay the cost af acquisition by CiTY, and dedicate afl 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 SUBDlVIDER's obligations with regard to acquisition by CITY of off-site rights-af-way, easements and other interests in real property shall be subject to a separate agreement befween SUBDIVIDER and CITY. SUBDIVIDER shall afso be responsible for obtaining any IL\dPUB1DJ E\I 597 —4— public or private sanitary sewer, domestic water, drainage, �nd/or utility easements or autharization 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 s#ated in Section (1)(b) above, unless a time extension is granted by the CITY as authorized in Section {22}, (� Install all SUBDIVISION public improvement monuments required by law and prior to formal finai acceptance of the public improvements by CITY. Individual property monuments shafl be installed within one year of said acceptance. (g) Install street name signs conforming to CITY standards. Permanent street narne signs shall be instailed before acceptance of the improvements by CITY. (2) Acquisition and Dedication of Easements or Riqhts-of Way. If any of the pubiic improvement and land use deveiopment worEc cantemplated by this Agreement is to be constructed or installed on lanc!not owned by CITY or SUBDIVlDER, no construction or installation shall be cammenced befare: (a) The offer of dedication to CITY of appropriat� rights-of-way, easements or other interests in real property, and appropriate authorization from the property owner to allow cons#ruction or installation of the improvements or work, or {b} The dedication to, and acceptance by, CITY of appropriate rights-of- way, easements or ather interests in reaf 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 alE respects with fhe order of possession. R�1PUD\DJE11597 _�j_ Nothing in this Section(2)shall be construed as authorizing or granting an extension of time #o SUBDIVIDER. (3} Securit . SUBDIVIDER shall at all times guaranfiee SUBDfVIDER's pertormance by furnishing to CITY, and maintaining, goad 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 instailed pursuant to this Agreement in the additional amount of 50%of the estimated cost of the improvements; and {c) to guarantee orwarranty the work done pursuant to this Agreement for a period of one year foliowing acceptance thereof by CITY against any defective work or labor dor�e or defective materials furnished in the additional amount of 10% of the estimated cost of the improvements; and (d) SUBDiVIDER shalf aiso furnish to CITY good and suffcien#security in the amount af one hundred percent(100%)of the estimated cost of setting SUBDIVISION monuments as stated previously in this Agreement in Section(1)(fl for a periad 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 Agresment by fhis reference. If any security is replaced by another R\4PU81DJEU597 ..6- approved security,the replacement shall: 1)comply with al!the requirements for security in this Agreement;2) be provided fio the City Engineer to be filed with the City Cterk and, upon filing, 3) sha11 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 seeurity may be re�eased. (4) Alterations to Improvement Plans. (a) Any changes, alterations or additions to the lmprovement Plans not exceeding ten percent(10%)of the original estimated cost of the improvements,which are � mutual}y agreed upon by CITY and SUBDIVIQER, shall not relieve the improvement security given far faithful performance af #his Agreement. In the event such changes, alterations, ar additions exceed 10% of the original estimated cost of the improvement, SUBDEV(DER shall provide improvement security for faithful performance as required by Section (3}of this Agreement for one hundred percen#(100%)ofi the tatal estimated cost of the improvements as changed, altered, or amended, minus any completed partial releases alEowed by Section (6) af this Agreement. (b) The SUBDIViDER shall construct the improvements in accordance with CITY standards in effect at the time of adaption of the Resolution of Approval. CITY reserves the right to modify #he standards applicable to the SUB�IVISION and this Agreement, when necessary to protec# the pub{ic safety or welfare or comply with applicable state or federal law or CITY zoning ordinances. If SUBDIVI�ER requests and is granted an extension af time for campletion of the improvements, CITY may apply the standards in effect at the tirne of the extension. Rh1PUB1D1E1i597 -"�- t (5} lnspection. 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 worfc, SUBDIVIDER may request a final inspection by the City Engineer, or the City Engineer's authorized representative. If fihe 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 pubiic improvements to the City Council. No improvements shall be finally accepted by the City Counci( 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 SUBD1ViDER's readiness for such inspectian and SUBDIVIDER shafl not proceed wi#h additional work until fhe inspection has been made and the work approved. SUBDIVIDER shal{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) Reiease of Securities. The securi#ies required by this Agreement shall be released as following: (a) Security given for faithful performance of any act, obligation, work or agreement shali be released upon the final campletion and acceptance of the act or woric, subject to the provisions of subsection (b) hereof. (b) The City Engineer may release a portion of the security given for faithfu! performance of improvement work as the improvement progresses upon application thereof by #he SUBDIVIDER; provided, however, that no such release shaN be for an amount fess than twenty-five percent (25%) of the tota( improvement security given for RMIPUB\DJEli597 -$- faithfiuf performance of the improvement work and that the security shall not be reduced to an amount less than fifty percent(50%) of fihe tofai improvement security given for faithful performance until fnal compfetion 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 arnount below that required to guarantee the completion of the improvement work and any other abligation imposed by this Agreement. (c) Security given to secure paymenfi to the contractor, his or her subcontractors and to persans furnishing labor, materiafs or equipment shall, at six (6) months after completion and accepfiance of the work, be reduced to an amount equal to na 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 fhe performance of any other obliga#ions secured by the Security.The balance of the security shall be released upon the settlement of all claims and obligations for which the s�curity was given. (d) No security given for the guarantee or warranty of work shall be released until the expiration of the warranty period ancf untif 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 wark and impravements by fihe City Council. (e) CITY may retain from any security releas�d, an amount sufficient to cover costs and reasonable expenses and fees, including reasonable attomeys' fees. (7) In'_IUN tp Public imqrovements Public Proaertv or Pubfic Utilities Facilities. SUBDIVIDER shalf replace or repair or have replaced or repaired, as the case may be, all public improvements, public utilities facilities and surveying ar subdivision monuments enipua�n��ism -9- which are destroyed or damaged as a result of any work under fihis Agreement. SUBDIViDER shall bear the entire cost of repfacement 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 5tate af California, or any agency or po(itical 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 Ciry Engineer. {8) Permits. SUBDIVIDER sha11, at SUBDIVIDER's expense, obtain all necessary permits and licenses for the construction and installation of the improvements, give all necessary notices and pay alI fees and taxes required by law. (9) Default of SUBDIVIDER. (a) Default of SUBDIVIDER shall include, but not be fimited to, (1) SUBDIVIDER's failure to timely commence construction of t3�is Agreement; (2) SUBDIVIDER's failure ta timely complete construction of the improvements; (3} SUBDIVIDER's failure to timely cure any defect in the improvements; (4)SUBDIVIDER's faifure to perfarm substantia!construction work for a period of fwenty (20) calendar days after commencement of fihe work; (5) SUBDIVIDER's insolvency, appointment of a receiver, or the filing of any peti#ion in bankruptcy either volun�ary or involuntary which SUBDlVIDER fails to discharge within thirty (30) days; � xn��nua�o�e��s9� -10- {6) the commencement of a foreclo'sure action against the SUBDIVISlON or a portion #hereof, 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 itseif al! remedies available ta it at law or in equity for breach af SUBDiVIDER's obligations under this Agreement. CITY shall have the right, subject to this 5ection, to draw upon or utilize the appropriate security ta mitigate CITY's damages in�vent of default by SlJBDIVIDER. The right of C(TY 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 amaunts may not reflect the actual cast of construction or installation of the improvements and, therefore, CITY's damages for SUBDIVIDER's default sha11 be measured by the cost of completing the required improvements. The sums provided by the improvement security may be used by CITY for fhe completion of the public improvements in accordance with the improvement plans and specifications contained herein. In the event of SUBDIVlDER's default under this Agreement, SUBDIVID�R authorizes CITY to perform such ob(igation fwenty(20)days after mailing written notice of default to SUBDIVIDER and to SUBDlVIDER's surety, and agrees to pay the entire cost of such performance by CfTY. ClTY may take over fhe wark and prasecute the same to completion, by contract or by any other method CITY may deem advisab(e, for the account and at the expense of SUBDIVIDER, and SUBDIVIDER's surefy shalf be liable to CITY for any excess cost or damages occasioned CITY thereby. In such event, CITY,without IiabiEity forso doing, may R1.it'UHIDJE11597 -li- take possession of, and utilize in completing the work, such rriaterials, appfiances, plants and other property belanging to SUBDIVID�R as may be on the site of the work and necessary for performance of the work. (c) Failure of SUBDfVIDER to comply with the terms of this Agreement shall constitute consent to the filing by C1TY of notice of violation against a11 the lots in the SUSDIVISION, or to rescind the approval ar otherwise revert the SUBDiViSlON to acreage. The remedy provided by this subsection (c} is in addition to and not in lieu of other remedies available to CtTY. SUBDIViDER agrees that the choice of remedy or remedies for SUBDIVIDER's breach shali be in the discretion of CITY, (d) !n the event that SUBDIVIDER fails to pertorm any obligation hereunder, SUBDIViDER agrees to pay all costs and expenses inct�rred by CITY in securing perFormance of such abligations, 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 respec# to a default, ar 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) Warran . SUBDiVIDER shall guarantee orwarranty the work done pursuant to this Agreement for a period of one year after final formal acceptance af the SUBDIVlSION by the City Counci! against any defective work or labor done or defective materials furnished. If wi#hin the warranty period any work or improvement or part of any work ar improvement done, furnished, installed, or cortstructed by SUBDIVIDER €ails 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 cast to CITY, repair ar replace or recanstruct any defective or otherwise unsatisfactory part or Rtvl PUBIDJ E11597 -�.�- parts of the work or structure. Should SUBDIVIDER €ail to ac�promptly or in accordance with this requirement, SUBDIVIDER hereby authorizes CITY, at CITY's option, to pertorm the wark finrenty (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 ClTY. Should CITY de�ermine 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 af such repairs. � (19) SUBDIVIDER Not Aaent of CITY. Neither SUBDfV1DER nor any of SUBDiVIDER's agents, contractors or subcontractars are or sha!! be considered to be agents of CITY in connection with the perFormance of SUBDfVIDER'S abligations under this Agreement. (12) iniury to Work. Until such time as the improvements are accepted by CITY, SUBDIVIDER shall be responsibie 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 wili be r�sponsible for the care, maintenance of, and any damage ta such improvements. CITY shall not, nor shaii any officer or employee thereof, be liable or responsible for any accident, loss or damage, regardless of cause, happening or occurring to the woric o�improvements specified in this Agreement prior to the completion and acceptance of the work ar improvements. All such risks shail be the responsibility af and are hereby assumed by SUBDIVIDER. (13} Environmenta! Warrantv. Prior to the acceptance of any dedications or improvements by C1TY, SUBDiVIDER shall certify and warrant that neither the property to be dedicated nor SUBDIVIDER is in vivlation of any environmental law and neither the RA!PUBIDJ E�I S97 -�3- praperty to be dedicated nor the SUBDIVIDER is subject to any existing, pending or threatened investigafiion by any federai, state or local governmental authority under or in connection with environmental law. Neither SUBDIVlDER 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 nafi caused or permitted the release of, and has no knowledge of the release or presence of, any hazardous substance on the property to 6e dedicated or the migratian at any hazardous substance from or #o 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 dedicafied has not resulted in the release of any hazardous substance on the property to be dedicated. SUBDIVfDER shall give prompt written natice ta CITY at the address set forth herein of: (a} Any proceeding or investigation by any federal, state or local governmerttal authority with respect to the presence of any hazardous substance on the property to be dedicated or the migration thereof from or to arty other property adjacent to, ar in the vicinity ofi, 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 resufting from any hazardous substance; and, (c) SUBDIVIDER's discovery of any occurrence or condition on any ro ert ad oinin I p p Y j g in the vicinity of the property to be dedicated that could cause the property to be dedicated or any part thereaf to be subject to any restrictions on its ownership, occupancy, use for the purpose for which is it is intended,transferability or suit uncler any environmental law. R\�IPUB\D1E11597 �14- (�4) OtherAqreements. Nothing contained in this Agreement shall preclude Cf1Y from expending monies pursuant to agreements concurrently or previously executed betw�en tf�e parties, or from entering into agreements with other subdividers for the apportionment of cos#s 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 apportionmen�. (15) SUBDIVIDER'S Qbliqation to Warn Public Durina Construction. Until formal final acceptance of the improvements, SUBDIVI DER shall give good and adequate warning to the public of each and every dangerous condition existent in said improvements, and will #ake all reasonable actions ta protect the pub(ic from such dangerous conditian. (16} Vestinq of Ownershi�. Upon forma!final acceptance of the work by CITY and recordati�n of the Resolution of Acceptance of Public Improvements, ownership of the improvements constructed pursuant to this Agreement shall vest in CITY. (17) Finai Acceotance of Work. Acceptance of the work on bef�alf of CITY shal!be made by the City Council upon recommendation of the City Engineer after final completion and inspection af ail improvements. The City Council sha(I act upon the Engineer's racommendation within sixty (60) days from the date the City Engineer certifies that the work has been finally completed, as provided in Secfiion (6). Such acceptance sha(! not constitute a waiver of defiects by CITY. (18) Indemni�ty/Hold Harmless. CITY ar any o�cer or employee thereof shall not be liable for any injury to persons ar property occasioned by reason of the acts or omissions af SUBDIViDER, its agents, or employees, contractors and subcontractors in the performance of this Agreement. SUBDIVlDER further agrees to protect, defend, indemnify and hold harmless CfTY, its officials, boards and commissions, and members thereof, R\�tPUfl\DJ611597 -15- agents and empioyees from any and all claims, demands, cau�es of action, liability or loss of any sort, because of, or arising out of, acts or omissians of SUBDIVIDER, its agents, employees, contractors and subcontractors in the performance ofi this Agreement, except far 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 constructian 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 h�rein, and in addition, to adjacent property owners as a consequence of the diversion of waters from the design and constructian of public drainage systems, streets and other public improvements. Acceptance by CITY of the improvements shaii not constitute an assumption by GTY of any responsibi(ity for any damage ar taking covered by this Sectian. C(TY 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, uniess the particular impravement design was specifrcally required by CITY over written objection by SUBDIVIDER submitted to the City Engineer before approval of the particular improvement design,which objection indicated that#he particular improvement design was dangerous or defective and suggested an alternative safe and feasible design. A{ter acceptance of the improvements, the SUBDlVIDER shalf remain obligated ta eliminate any defect in design or dangerous condition caused by fhe design or construction defect; however, SUBDfVIDER shall not be responsib(e for routine RA-1pUB\pfE\1597 -16- maintenance. Provisions of this Seetion shall remain in full fbrce and effect for fien (10) years following the acceptance�y CiTY of the improvements. !t is the inter�t of this Section that SUBDIVIDER shall be responsible for ali liability for design and construction of the improvemen#s insta(led or work done pursuant to this Agreement and that CITY shall not be liable for any negligenca, nonfeasance, misfeasance or malfeasance in apprpving, reviewing, checking, ar inspecting any work or construction. The impravement security shall not be required to cover the provisions of this Section. SUBDIVfDER 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 flf SUBDIViDER'S Qbliqations. A!I ofSUBDIVIDER's obligations under this agreement are and shall remain �he personal obligafiions of SUBDIVIDER notwithstanding a transfer of ali 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 al( 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. Sefler or other SUBDIVIDER may request a novation of this Agresment and a substitution of security, Upon approval of the navation and substitution of securities, the SUBDIVIDER may request a refease or reduction of the securities required by#his Agreement. Nothing in the novatian shall relieve the SUBDIVIDER of the obligations under Section (18) for the work or improvement done by SUBDIV(DER. �,�-irus�b��is9� -17- (21} Time of the Essence. Time is of fhe sssence`in the pertormance of this Agreement. (22) Time for Commencement of Wark� Time Extensions. SUBDIViDER shall cammence substantial construcfion of the improvements required by this Agreement not later than six(6) manths after the date of fihis Agreement. In the event good cause exists as determined by the City Engineer, the time far 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 shal!be executed in writing by the City Engineer. Any such extension may be granted without notice to SUBDIVIDER's surety and shail not affect the validity of this Agreement or release the surety or sureties on any security given for this Agreement. The City Engineer shalf be the sofe and fina!judge as to whether or not good cause has been shown to entitie SUBDlV1DER to an extension. Delay, other than delay in the cammencement of work, resulting from an act of ClTY, act of God, or by storm or inclement weather, strikes, boycotts or similar political actions which prevents the conducfing of work,which SUBDIVIDER could not have reasonably foreseen and, furthermore, were not caused by or contributed to by SUBDIVIDER, shall cons#itute good cause for and extension of the time for completiQn. As a condition af such extension, � the City Engineer may require SUBDIVI�ER to furnish new security guaranteeing �erformance 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. (23) No Vestin af Ri �ts. Performance by SUBDIV(DER ofthis Agreement shaf( not be construed to vest SUBDIVIDER's rights with respectto any change in any zoning or building law or ordinance. , R\1PU61DJE�1597 `1$- (24) Notic�s. AE!notices requirect or provided for underthisAgreement shall be in writing and de�ivered in persan orsent by mail, postage prepaid and addressed as pravided in this Section. Notice shall be effective on the date it is de(ivered in persan, or, if mailed, on the date of deposit in the United States mail. Nofiices 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, Califomia 92260 Attn: Public Works Director Notice #o SUBDIVIDER: Choice Enterprise Real Estate & investment Co., Inc. 74-923 Hwy 11 i Ste#114 Indian Wells, Ca. � �'� Notice to SURETY: Lincoin General Insurance Com any York, Pennsylvania {25) Com liance With Laws. SUBDIVEDER, its agents,empioyees, cantracfiors and subcontractars shall comply with al!federal, state ancf local laws in the pertormartce of the improvements and land development work reqUired by this Agreement. (26) Severabilifir. 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 fu11 force and effect unless amended or modified by the mutual consent of the parties. {27) Ca tions. The captions of this Agreement are ftir convenience and reference onty and shalE not defiine, explain, modify, limit, exemplify, or aid in the interpretation, construction ar meaning of any provisions of this Agreement. a�iru��e�ise� —19— {28) Litiqation or Arbitration. In the event that suit br 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 RecitaEs. The recitals to this Agreement are hereby incorporated into in the terms of this Agr�ement. (30) Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to th�subject matter. All modifrcations,amendments, or waivers of the terms of this Agreement must be in writing and signed by#he appropriate representatives of the parties. (31) I�terpretation. This Agreement shall be interpreted in accordance with the laws of the State af California. (32) Jurisdiction. Jurisdiction ofall disputes over the terms ofthis Agreement shafl be in the County af Riverside, State of Califarnia. /// /// /// /U R,�1PU8\DJE11 i97 -2�'- IN WITNESS WHEREOF', this Agreement is executed by the parties as of the date hereinabove first written; by C1TY, by and through its Mayor. Gh� ��'�".�� ,2�.e��'e�N��,�-G=�r,,,�. �� ' / ��Z� . CfTY OF PALM DES � SUBDIViDER By: SUBOIVIDER qyp r / �.! (Proper Notarization of SUBDfVIDER's signature is required and shall be attached} ATTEST: CITY CLE�K APPROV �,S TO F�RM: CI ATT NEY e�trus�ot��is9� -a1- STATE �F CALIF�RNIA ) � � SS COUNTY OF RIVERSIDE ) �n , 20�before me, a Notary Public in and for said S#ate, personally appeared�,��d ��llo, personally known to me( e)to be tf�e person(�whose name(�}is/a�subscribed to the within instrument and acknowledged to me that he/s�e/tty�,y executed the same in his/l�,r/t�ir authorized capacity{i�), and that by his/fy�r/t�ir signature(,�} on the instrument the person�), or the entity upon behalf of which the person�acted, executed the insfrument. WITNESS my hand and official sea{. PAMELA J. WltTWER C�►�efOn�i4q7214 �W Pubtic-Calltomlo � Rfverdde Coun�y NOTARY PUBLIC ��•k�+esOct3p,2pp7 RklPUB1VCDV60 -22- WARING MEDICAL & PROFESSIONAL PLAZA � � �� . _..».'... 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'� _.� APN:640040016.000000 ` y,� APN:64004103B.Q00000 House#:72700 � ' House#:0 � " � � � , , : � ,�. .�.��. ,_ �..� _ � , __._... �..��. ,. � .. .._�.� ._,. _.� ...._�_. �' � y �-�-- � � ----fRED-1111�►°R1N6-DR�'N - �_�..�4. .____..�_ ; _.,_. . , ..��.��. ��__ __ ..�.M_..._ ,.. ��. _,,,____ �� _ � � _ ' � _ wm._.� � � �.- � u._ � � � APN:640340008.000000 � f House#:44419 � � j � i � � APN:640110047.000000 � ? � � House#:44250 ___.�_ . � � _. �_ _�eq Q f 3 _ s 1 ; i � ` : '........,..._ .......... Legend O 1: 1,943 �3 � rr� � Circulation Network — Streets � �� ;� ��' City Boundary Palm Desert Parcels(7/20� � �,,�„� Notes ��W ` � �, �,.,;