HomeMy WebLinkAboutRelease Security - Desert Wings, LLC Buffalo Wild Wings RestaurantCITY OF PALM DESERT
PUBLIC WORKS DEPARTMENT
STAFF REPORT
REQUEST: RELEASE SECURITY FOR DESERT WINGS, LLC (BUFFALO WILD
WINGS RESTAURANT)
SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works
APPLICANT: Desert Wings, LLC
5700 Lake Wright Drive
Suite 103
Norfolk, VA 23502
DATE: January 13, 2011
CONTENTS: Agreement
Vicinity Map
Recommendation
By Minute Motion, release security for Desert Wings, LLC (Buffalo Wild
Wings Restaurant).
Background
The subject property is located at 72920 Highway 111, next to the Westfield Shopping
Center. At the time of grading permit issuance, a faithful performance and labor and
materials deposit was posted for construction of various minor public improvements.
Staff has performed a final inspection of the project, deemed it complete, and
recommends that the City Council authorize the release of the faithful performance and
labor and materials deposit, and waive the one-year maintenance requirement due to
the minor nature of the improvements.
Staff Report
Release Security for Desert Wings, LLC (Buffalo Wild Wings)
January 13, 2011
Page 2of2
Fiscal Analysis
There is no fiscal impact associated with this action.
Prepared By:
Christina Canales, Assistant Engineer
ul S. Gibson, Director of Finance
Approval:
M. Wohlmuth, City Manager
CITY COUNCILAPTION
APPROVED / _ DENIED
RECEIVED OTHER
Department Head:
Mark Green d, P.E.,
Director of Public Works
MEETING DATE
AYES: Fill ;e
NOES: 0MC
ABSENT: K OL
ABSTAIN: one
VEE"If 11 f) BY:'ren--�—
Original on File with City Clcrk6 ' O" fficc
CITY 01 P 0 L M I RT
73-510 FRF',D WARING DRIVE.
PALM DFsFwr, CALIFORNIA 92260-2578
TEL:76o 346-o6ii
FAX: 760 340-0574
infoCnlpal m-desemorg
November 15, 2010
Desert Wings, LLC
5700 Lake Wright Drive, #103
Norfolk, Virginia 23502
Dear Sir or Madam;
Subject: Grading Only Agreement for Real Property Located at 72-920
Highway 111 (APN 640-140-031 and 640-140-020
Enclosed for your records is a fully executed copy of the Grading Only Agreement for
the subject property. If you have any questions or require additional information, please
do not hesitate to contact us.
Sincerely,
RACHELLE D. KLASSEN, CMC
CITY CLERK
RDK:mgm
Enclosure (as noted)
CC' Christina Canales, Assistant Engineer
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GRADING ONLY AGREEMENT
DATE OF AGREEMENT: � � °�! 20 v.
�� C
NAME OF OWNERlDEVELOPER referred to as "GRADER").
6y10-No-o-31
PROPERTY (MAP AND PARCEL NO.): (referred _ I . of Lots:
as "PROPERTY").
=
GRADING PLANS APPROVED ON:Gef?er5red tQ as "GRADING PLANS"}.
jc 00
v r.� P f 1Q...
ESTIMATED TOTAL COST OF GRADING:$_ _ Z�
SURETY:
BOND NOS: '
SURETY:
-OR-
IRREVOCABLE STAND -ICY LET TER OF CREDIT NO.
FINANCIAL INSTITUTION:
-OR-
CASH/CERTIFICATE OF DEPOSIT, AGREEMENT DATED.
FINANCIAL INSTITUTION:
This Agreement is made and entered into by and between the City of Palm Desert, a
municipal corporation of the State of California, hereinafter referred to as "CITY, and the
GRADER.
RECITALS
A. In consideration of the approval of the Grading Plans for the PROPERTY by
the City Council, GRADER desires to enter into this Agreement, whereby GRADER
promises to complete, at GRADER's own expense, all the grading work required by CITY in
connection with the proposed PROPERTY. GRADER has secured this Agreement by
grading security required by the City and approved by the City Attorney.
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B. GRADING PLANS for the grading of the PROPERTY have been prepared by
GRADER and approved by the City Engineer. The GRADING 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. Ail references in this Agreement to
the GRADING PLANS shall include reference to any specifications for the improvements as
approved by the City Engineer.
C. An estimate of the cost for grading and performing land development work in
connection with the grading according to the GRADING PLANS has been made and has
been approved by the City Engineer. The estimated amount is stated on Page 1 of this
Agreement. The basis for the estimate is attached as Exhibit 'W'to this Agreement.
D. CITY has adopted standards for the grading of property within the CITY. The
GRADING PLANS have been prepared in conformance with Ci T Y standards in effect on
the date of the approval.
E. GRADER recognizes that CITY and adjacent properties may be damaged by
GRADER's failure to perform its obligations to complete approved grading by the time
established in this Agreement. CITY shall be entitled to all remedies available to it pursuant
to this Agreement and law in the event of a default by GRADER.
NOW, THEREFORE, in consideration of the approval by the City of the GRADING
PLANS, GRADER and CITY agree as follows:
(1) GRADER's Obligation to Complete Grading.
GRADER shall:
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(a) Complete at GRADER's own expense, all the grading required by the
Approval in conformance with approved GRADING PLANS within one year from date of
execution of this Agreement; provided however, that the grading shall not be deemed to be
completed until approved by City Engineer as provided in Section 4 herein.
(2) Security.
GRADER shall at all times guarantee GRADER's performance by furnishing to CITY,
and maintaining, good and sufficient security as required by the CITY 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
grading in an amount of 25% of the estimated cost of the grading.
The securities required by this Agreement shall be kept on file with the City Clerk.
The terms of the security documents referenced on page 1 of this Agreement are
incorporated into this Agreement by this reference. If any security is replaced by another
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
repiacement security with the City Clerk, the former security may be released.
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(3) Alterations to GRADING PLANS.
(a) Any changes, alterations or additions to the GRADING PLANS not
exceeding ten percent (1 u`io) of the original estimated cost of the improvements, which are
mutually agreed upon by CITY and GRADER, shall not relieve the improvement security
given for faithful performance of this Agreement. In the event such changes, alterations, or
additions exceed 10% of the original estimated cost of the improvement, GRADER shah
provide grading security for faithful performance as required by Section (3) of this
Agreement for twenty-five percent (25%) of the total estimated cost of the grading as
changed, altered, or amended, minus any completed partial reieases allowed by Section
(6) of this Agreement.
(b) The GRADER shall complete the grading in accordance with CITY
standards in effect at the time of approval of GRADING PLANS. CITY reserves the right to
modify the standards applicable to the PROPERTY and this Agreement, when necessary to
protect the public safety or welfare or comply with applicable state or federal law or CITY
zoning ordinances. If GRADER requests and is granted an extension of time for
completion of the grading, CITY may apply the standards in effect at the time of the
extension.
(4) inspection. GRADER shall at all times maintain proper facilities and safe
access for inspection of the grading by CITY inspectors. Upon completion of the work,
GRADER may request a final inspection by the City Engineer, or the City Engineer's
authorized representative. if the City Engineer, or the designated representative,
determ ines that the work has been completed in accordance with this Agreement, then the
City Engineer shall certify the completion of the grading. When applicable law requires an
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inspection to be made by City at a particular stage of the grading, CITY shall be given
timely notice of GRADER's readiness for such inspection and GRADER shall not proceed
with additional work until the inspection has been made and the work approved. GRADER
shall bear all costs of inspection and certification.
(5) Release of Securities. The securities required by this Agreement shall be
released as following:
(a) Security given for faithful performance of any act, obligation, work or
agreement shall be released upon the final completion and approved of the act or work.
(6) in$u to Public improvements, Public Property or Public Utilities Faciiities.
GRADER shall replace or repair or have replaced or repaired, as the case may be, all
public improvements, public utilities facilities and surveying or property monuments which
are destroyed or damaged as a result of any work under this Agreement. GRADER shaii
bear the ent;re cost of replacement or repairs of any and all public or public utility property
damaged or destroyed by reason of any work done under this Agreement, whether such
property is awned by the united States or any agency thereof, or the State of California, or
any agency or political subdivision thereof, or by CITY or any public or private utility
corporation or by any combination of such owners. Any repair or replacement shall be to
the satisfaction, and subject to the approval, of the City Engineer,
(7) Permits. GRADER shall, at GRADER's expense, obtain all necessary permits
and licenses for the grading, give all necessary notices and pay all fees and taxes required
by law.
(8) Default of GRADER.
(a) Default of GRADER shall include, but not be limited to,
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(1) GRADER's failure to timely commence the grading;
(2) GRADER's failure to timely complete grading;
(3) GRADER's failure to timely cure any defect in the grading;
(4) GRADER's failure to perform substantial work for a period of twenty
(20) calendar days after commencement of the work;
(5) GRADER's insolvency, appointment of a receiver, or the filing of
any petition in bankruptcy either voluntary or involuntary which GRADER fails to discharge
within thirty (30) days,
(6) the commencement of a foreclosure action against the PROPERTY
or a portion thereof, or any conveyance in lieu or in avoidance of foreclosure; or
Agreement,
(7) GRADER's failure to perform any other obligation under this
(b) CITY reserves to itself all remedies available to it at law or in equity for
breach of GRADER's obligations under this Agreement. CITY shall have the right, subject
to this Section, to draw upon or utilize the appropriate security to mitigate CITY's damages
in event of default by GRADER. The right of CITY to draw upon or utilize the security is
additional to and not in lieu of any other remedy available to CITY. It is specifically
recognized that the estimated costs and security amounts may not refleci the actuai cost of
grading and, therefore, CITY's damages for GRADER's default shall be measured by the
cost of completing the required grading. The sums provided by the security may be used
by CITY for the completion of the grading in accordance with the GRADING PLANS
contained herein.
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In the event of GRADER's default under this Agreement, GRADER authorizes CITY
to perform such obligation twenty (20) days after mailing written notice of default to
GRADER and to GRADER's surety, and agrees to pay the entire cost of such performance
by CITY.
CITY may take over the work and prosecute the same to completion, by contract or
by any other method CITY may deem advisable, for the account and at the expense of
GRADER, and GRADER's surety shall -be liable to CITY for any excess cost or damages
occasioned CITY thereby. In such event, CITY, without liability for so doing, may take
possession of, and utilize in completing the work, such materials, appiiances, plants and
other property belonging to GRADER as may be on the site of the work and necessary for
performance of the work.
(c) Failure of GRADER to comply with the terms of this Agreement shall
constitute consent to the filing by CITY of notice of violation against the PROPERTY. The
remedy provided by this subsection (c) is in addition to and not in lieu of other remedies
available to Ci T Y. GRADER agrees that the choice of remedy or remedies for GRADER's
breach shall be in the discretion of CITY.
(d) In the event that GRADER fails to perform any obligation hereunder,
GRADER agrees io pay all costs and expenses incurred by Ci T Y in securing performance
of such obligations, including but not limited to fees and charges of engineers, attorneys,
other professionals, and court costs.
(e) The failure of CI i Y to take an enforcement action with respect to a
default, or to declare a breach, shall not be construed as a waiver of that default or breach
or any subsequent default or breach of GRADER.
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(9) GRADER Not Agent of CITY. Neither GRADER nor any of GRADER's
agents, contractors or subcontractors are or shall be considered to be agents of CITY in
connection with the performance of GRADERIS obligations under this Agreement.
(to) Indemnity/Hold Harmless. CITY or any officer or employee thereof shall not
be liable for any injury to persons or property occasioned by reason of the acts or omissions
of GRADER, its agents, or employees, contractors and subcontractors in the performance
of this Agreement. GRADER further agrees to protect, defend, indemnify and hold
harmless CITY, its officials, boards and commissions, and members thereof, agents and
empioyees from any and aii claims, demands, causes of action, iiability or loss of any sort,
because of, or arising out of, acts or omissions of GRADER, its agents, employees,
contractors and subcontractors in the performance of this Agreement, except for such
claims, demands, causes of action, liability, or loss arising out of the sole active negligence
of the CITY, its officials, boards, commissions, the members thereof, agents, and
employees, including all claims, demands, causes of action, liability, or loss because of, or
arising out of, in whole or in part, the design or construction of the improvements. This
indemnification and agreement to hold harmless shall extend to injuries to persons and
damages or taking of property resulting from the grading of the PROPERTY, and in
addition, to adjacent property owners. Approval by CITY' of the grading shall not constitute
an assumption by CITY of any responsibility for any damage or taking covered by this
Section. CITY shall not be responsible for the performance of grading, regardless of any
negligent action or inaction taken by CITY in approving the plans, unless the particular
design was specifically required by CITY over written objection by GRADER submitted to
the City Engineer before approval of the particular grading design, which objection indicated
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that the particular grading design was dangerous or defective and suggested an alternative
safe and feasible design.
GRADER shall reimburse CIT4' for ali 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.
(11) Personal Naiure of GRADER'S Obligations. Ail of GRADER's obligations
under this agreement are and shall remain the personal obligations of GRADER
notwithstanding a transfer of all or any part of the property subject to this Agreement, and
GRADER shall not be entitled to assign its obligations under this Agreement to any
transferee of all or any part of the property within the PROPERTY or to any other third party
without the express written consent of CITY.
(12) Saie or Disposition of PROPERTY GRADER may request a novation of this
Agreement and a substitution of security. Upon approval of the novation and substitution of
securities, the GRADER may request a release or reduction of the securities required by
this Agreement. Nothing in the novation shall relieve the GRADER of the obligations under
Section (18) for the work or improvement done by GRADER.
(13) Time of the Essence. Time is of the essence in the performance of this
Agreement.
(14) Time for Commencement of Work; Time Extensions. GRADER shall
commence substantial grading 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 grading hereunder maybe extended fora period
or periods not exceeding a total of two (2) additional years. The extension shall be
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executed in writing by the City Engineer. Any such extension may be granted without notice
to GRADER's surety and shall not affect the validity of this Agreement or release the surety
or sureties on any security given for this Agreement. The City Engineer shall be the sole
and final judge as to whether or not good cause has been shown to entitle GRADER to an
extension. Delay, other than delay in the commencement of work, resulting from an act of
CiTf, act of God, or by storm or inclement weather, strikes, boycotts or similar political
actions which prevents the conducting of work, which GRADER could not have reasonably
foreseen and, furthermore, were not caused by or contributed to by GRADER, shall
constitute good cause for and extension of the time for completion. As a condition of such
extension, the City Engineer may require GRADER to furnish new security guaranteeing
performance of this Agreement as extended in an increased amount as necessary to
compensate for any increase in construction costs as determined by the City Engineer.
(15) No Vestingof Rights. Performance by GRADER of this Agreement shall not
be construed to vest GRADER's rights with respect to any change in any zoning or building
law or ordinance.
(16) Notices. All notices required or provided for under this Agreement shall be in
writing and delivered in person or sent by mail, postage prepaid and addressed as provided
in this Section. Notice shali 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:
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Notice to CITY: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attn: Public Works Director
Notice to GRADER:yESF�-T
-1b3
o L. 2 0
Notice to SURETY:
(17) Compliance With Laws. GRADER, its agents, employees, contractors and
subcontractors shall comply with al I federal, state and local laws in the performance of the
grading required by this Agreement.
(18) Severabifity. The provisions of this Agreement are severable. If any portion
of this Agreement is held invalid by a court of competent jurisdiction, the remainder of the
agreement shall remain in full force and effect unless amended or modified by the mutual
consent of the parties.
(19) 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.
(20) Litigation or Arbitration. In the event that suit or arbitration is brought to
enforce the terms of this Agreement, the prevailing party shall be entitled to litigation costs
and reasonable attorneys' fees.
(21) I ncornoration of Recitals. The recitals to this Agreement are hereby
incorporated into in the terms of this Agreement.
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(22)
Entire Agreement.
This Agreement constitutes the entire agreement of the
parties with respect to the subject matter. All modifications, amendments, orwaivers of the
terms of this Agreement must be in writing and signed by the appropriate representatives of
the parties.
(23) Interpretation. This Agreement shall be interpreted in accordance with the
laws of the State of California.
(24) Jurisdiction. Jurisdiction of all disputes over the terms of this Agreement shall
be in the County of Riverside, State of California.
IN WITNESS WHEREOF, this Agreement is executed by the parties as of the date
hereinabove first written; W CITY, by argyfthrough its Mayor.
(PJN(0�I LUc -
GRADER
(Proper Notarization of
GRADER's signature is
requireu and shall be attached)
CITY OF PALM DESERT
MAYOR
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APPROV C AS TO FORa'Vt:
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Engineers Probable Opinion of Cost Revised
Buffalo Wild Wings Site Tenant Improvements 10/20/2010
Onsite
Item
Quantity
Units Unit Cost
Subtotal
Construct 6" Thick PCC Walkway
1918
SF
$6.00
$11,508-00
Construct ACO Trench Drain FG100
70
LF
$40.00
$2,800.00
Construct 6" PVC Drain Line
12
LF
$20.00
$240.00
Construct Bubbler Box Per Detail
1
EA
$300.00
$300,00
Construct 4' Retaining Wall
110
LF
$60.00
$6,600.00
Construct ADA Ramp, Signage and Retrofit
1
LS
$5,000.00
$5,000.00
Construct 2x2 Catch Basin with Grate
1
EA
$300.00
$300.00
Total $26,748.00
Landscaping (offsite and onsite►
Item Quantity Units Unit Cost Subtotal
Install Landscaping and Irrigation 5662 SF $5.00 $28,310.00
Total $28,310.00
offsite (Portion in ROW only)
Item Quantity Units Unit Cost Subtotal
Construct 6" Thick PCC Walkway 60 SF $6.00 $360.00
Install Landscaping and Irrigation 528 SF $5.00 $2,640.00
Total $3,000.00
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Locator Map
Date:
12/2010
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VICINITY MAP