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HomeMy WebLinkAboutTract Map 36335 - Release Security - Ponderosa Homes IICITY OF PALM DESERT PUBLIC WORKS DEPARTMENT STAFF REPORT REQUEST: RELEASE SECURITY FOR TRACT MAP 36335 SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works APPLICANT: Ponderosa Homes II Attention: Dennis Swickard 6671 Owens Drive Pleasanton, CA 94588 The Continental Insurance Company Attention: Erin Bautista 405 Howard Street, 6th Floor San Francisco, CA 94105 BOND NUMBER: 929455682 DATE: October 13, 2011 CONTENTS: Bond Agreement Vicinity Map Recommendation By Minute Motion, release security for tract map 36335. Background Tract map 36335 is located within the Ponderosa Homes subdivision, west of Portola Avenue between Gerald Ford Drive and Dinah Shore Drive. At the time of rough grading permit issuance, the applicant submitted bonds in the total amount of $19,128 for rough grading. Rough grading is now complete. Staff has inspected the site and found it to be acceptable. Staff Report Release Security for Tract Map 36335 October 13, 2011 Page 2of2 Fiscal Analysis There is no fiscal impact associated with this action. Prepared By: aW(16kna L &Vw e Christina Canales, Assistant Engineer Paul S. Gibson, Director of Finance M. Wohlmuffh, City Manager CITY COUNCILA70TI APPROVED L DF.NIFD RECEIVED OTHER Depa Mark Greenybood, P.E., Director of Public Works MEETING DATE 10 -I - ---') Oil AYEti• �in�r I cs(fli iC ` 7-Ore—fl, ea , 5�/1 Nl "Ors: NDo e 1P a4'+'t'_l14: on i(C ,,,a ,%11 bile with Ci�:N' Clurl;',, 4 i'ticc SUBDIVISION IMPROVEMENT BOND FAITHFUL PERFORMANCE (CALIFORNIA) Bond 929455682 Initial Premium $ 10 0.0 0 KNOW ALL BY THESE PRESENTS, That Ponderosa Homes I I , Inc. as Principal and the The Continental Insurance Company , a Corporation organized and existing under the laws of the State of Pennsylvania and authorized to transact surety business in the State of California, as Surety, are held and firmly boundunto City of Palm Desert as Obligee, inthesumof Twelve Thousand Seven Hundred Fifty Two & 00/100s--- ($ 12 , 7 5 2 . 0 0 ), for the payment whereof, well and truly to be made, said principal and Surety bind themselves, their heirs, administrators, successors and assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH, That WHEREAS, the Principal on entered into a certain Agreement or Contract with the Obligee wherein the Principal agreed to complete the following improvements: TR 36335 Rough Grading, Gallery Subdivision as more fully set forth In said Agreement. NOW, THEREFORE, if the Principal shall well and truly perform and fulfiil all of the covenants, terms and conditions of the said Agreement, then this obligation shall be null and void; otherwise to remain in full force and ef%ct. Provided however: (1) That as a part of the obligation secured hereby and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fear, including reasonable attorney's fees, incurred by Obligee in successfully enforcing such obligation, all to be taxed as costs and included In any judgment rendered; (2) That the Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement or to the work to be performed thereunder or the specifications accompanying the same shall in anywise affect it obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Agreement or to the work or to the specifications; (3) That no right of action shall accrue hereunder to or for the benefit of any person, firm or corporation other than the Obligee named herein. Signed, sealed and dated June 15 , 2011 . Ponderosa Homes II, Inc. The Continental Insurance Company Prim el BY tCLta Erin BautliWa, Attorncy-in-Fact 405 Howard Street, 6th Floor San Francisco, CA 94105 Surety Phone No. 415 - 9 3 2 - 717 5 Address xDa ACKNOWLEDGMENT State of California County of Santa Clara } On June 15, 2011 before me, Jean L. Neu, Notary Public (insert name and title of the officer) personally appeared Erin Bautista who proved to me on the basis of satisfactory evidence to be the person(* whose name(s) is/ace subscribed to the within instrument and acknowledged to me that ItwsheAtw executed the same in Ms/her/ authorized capacity(it* and that b~eriftir signature(s) on the instrument the person(*), or the entity upon behalf of which the person(W acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal, �~- JEAN L. Neu Commission # f881335 q Notary public - Calftornia z Santa Clara County M Comm. Exp.ry Mar 1, 2014 Signatur (Seal) `' " CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of A6,A'.4 cL On- unf- 16a 0/I before me, J � n.efi -S. U-Atp t1(. I � 04'f cu Here Insert d TRIe personally appeared L j /lid{% Namafa)of gne s) W t tiflTt�i.1ldyPatio - Cdit1 ttAhme t Countomm ns On Is 2013 who proved to me on the basis of satisfactory evidence to be the person(s}-whose name* Islam subscribed to the within instrument and acknowledged to me that-haf'she/UW executed the same in 41is1her/iheir authorized capacity(iw), and that by Itislher/tbeir signatures} on the instrument the person(s); or the entity upon behalf of which the person("cted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. r 1 Signature: 14�w Plaoa Nobly Seal andlor Stamp Above OPTIONSignature of Notary Public AL Though the infonnation below is not required by law, it may prove 1 to persons relying on the nt and could prevent fraudulent removal and reattachment form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: _. Capacity(ies) Claimed by Signer(s) Number of Pages: Signer's Name: Signer's Name: ❑ Corporate Officer — Tide(s): ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — L Limited I]General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ❑ Individual ❑ Partner — U Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 020M National Notary Awodalim • 9350 De Solo Ave. P.O. Box 24M •Chatawor#% CA 91313-2402-wm NatfonalN ofaryarg Rein a5907 Reorder Cal Tdl-Free 149004178$B27 SUBDIVISION IMPROVEMENT BOND LABOR AND MATERIAL (CALIFORNIA) Bond 929455682 Premium $ Incl. in Performance Bond KNOW ALL BY THESE PRESENTS, That Ponderosa Homes I I , Inc. as Principal, and the The Continental Insurance Company , a Corporation organized and existing under the laws of the State of Pennsylvania and authorized to transact surety business in the State of California, as Surety, are City of Palm Desert for the usi and Generit -of any and all persons entitled to file claim under Titlee commencing with ct on 30M ofFart 4 -of Divion 3 of the Civil Code of the State ofCalftmia, in the sum of Six Thousand Three Hundred Seventy Six & 00 100s--- ($ 6,376.00 ), for the payment whereof, well and truly to be made, said Principal and Surety bind themselves, their heirs, administrators, successors and assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH, That WHEREAS, the Principal entered into a certain Agreement or Contract with the Obligee, dated the day of , , wherein the Principal has agreed to complete the following improvements: TR 36335 Rough Grading, Gallery Subdivision as more fully set forth in said agreement. NOW TEMEFORB, If the Principal shall pay all contractors, subcontractors, laborers, materialmen and other persons employed in the performance of the Agreement, for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to such work or labor, then this obligation shall be null and void; otherwise, to remain in full force and effect. Provided, however: (1) That said Surety wilt pay the same in an amount not exceeding the amount hereinafter set forth, and also in case suit is brought upon this bond, will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, including attomey's fees, Incurred by County (or City) in successfully enforcing such obligation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment therein rendered; (2) That the Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of said Agreement or the specifications accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive notice of any such change, extension, alteration or addition. (3) That the time for filing suit on this bond sball be limited to six (6) months from date of completion of said improvements as "completion" is defined under applicable sections of the Civil Code of The State of California. Signed and sealed this 15 t h Ponderosa Homes II, Inc. day of Principal t3 June 2011 The Continental Insurance Company Surety By Erin -Bautt sta, Attorney -In -Fact 405 Howard Street, 6th Floor San Francisco, CA 94105 Surety Phone No. 415 - 932 - 7175 Address 84MMsA laW XDP State of California County of Santa Clara On June 15, 2011 ACKNOWLEDGMENT before me, Jean L. Neu, Notary Public (insert name and title of the officer) personally appeared Erin Bautista who proved to me on the basis of satisfactory evidence to be the person( whose name(E) is/ace subscribed to the within instrument and acknowledged to me that ktdshe/itmy executed the same in ids/her/* authorized capacity0m* and that byAvWhedtbtsir signature(s) on the instrument the person(*), or the entity upon behalf of which the person( acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. JEA.Y L. NEU �.�.. Commission # 18813, 5 a -c+. - Notary Public • Calllorn a z z Santa Clara County PAY Comm. ExWres Mar 1, 22^ 1 (Seal) s, POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY -IN -FACT Knew All Men By These Presents, That The Continental Insurance Company, a Pennsylvania corporation, is a duly organized and existing corporation having its principal office in the City of Chicago, and State of Illinois, and that it does by virtue of the signature and seal herein affixed hereby make, constitute and appoint Erin Bautista, Bradley N Wright, Carol B Henry, B A Poitevin, Jean L Neu, Bryan D Martin, Individually of San Francisco, CA, its true and lawful Attomey(s)-in-Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds, undertakings and other obligatory instruments of similar nature - in Unlimited Amounts - and to bind them thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said Attorney, pursuant to the authority hereby given is hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By -Law and Resolutions, printed on the reverse hereof, duly adopted, as indicated, by the Board of Directors of the corporation. In Witness Whereof, The Continental Insurance Company has caused these presents to be signed by its Senior Vice President and its corporate seal to be hereto affixed on this 24th day of April, 2008. •....1N8ti .� The Continental Insurance Company 07� ; Thomas P. Stillman Senior Vice President State of Illinois, County of Cook, ss: On this 24th day of April, 2008, before me personally came Thomas P. Stillman to me known, who, being by me duty swom, did depose and say: that he resides in the City of Chicago, State of Illinois; that he is a Senior Vice President of The Continental Insurance Company, a Pennsylvania corporation, described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said corporation. OFFICIAL SEAL ELIZA PRICE NOTARY PUSLIC. STATE OF ILLINOIS MY COMMISSION EXPIRE.$: OM 7100 My Commission Expires September 17, 2009 E ce4dNotary Public CERTIFICATE 1, Mary A. Ribikawskis, Assistant Secretary of The Continental Insurance Company, a Pennsylvania corporation, do hereby certify that the Power of Attorney herein above set forth is still in force, and further certify that the By -Law and Resolution of the Board of Directors of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said corporation this 15th day of June 2011 "•"•• The Continental Insurance Company ��t. iN80 •.' '''•�•''' Mary A. Rtikail@kis Assistant Secretary Form F6850-1/2007 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of � �a(me � �-- Ot�► .� �n 2 I(O • �0 ti before me, - n-- S iJ�G�� t A % a �-a f� < <' e Here tneart rawn and This o personally appeared 1_ ( Ail) E Al 0 P A:Sd H a) of 5wWris) COMWAMMI ♦ tt oft! Pok - Cditnds Akntoft Cmty COMMfloc 18. 2013 who proved to me on the basis of satisfactory evidence to be the personjs) whose names} is/are subscribed to the within instrument and acknowledged to me that hefshe/thW executed the same in hWher authorized capacity(lse}, and that by -his/herLWeir signature(o on the instrument the person(s}, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: _ Place Notary Sml and/or StwV Above OPTIONAL SlWfature of Notary PUNIC Though the information below is not required by law, it may prove ble to persons retying on the ant and could prevent fraudulent removal and reattad►merM of this tom► to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: _ Capacity(ies) Claimed by Signer(s) Number of Pages: Signer's Name: Signer's Name: ❑ Corporate Officer — Tdle(s): ❑ Individual ❑ Partner — [ ' Limited u General Top of thumb here ❑ Attomey in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — E Limited fa General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: v e�uo neoonei rvapry nesocareon • xuu r» rmo Ave . r .v aox 29u2 •cnwworm. uA 91313.2102 • www.NMon&Motary Oro rem 05M iieorder Coe Too -Free 14M047"M Company Profile Company Profile Page 1 of 2 CONTINENTAL INSURANCE COMPANY (THE) CNA 333 S. WABASH, 28TH FL. CHICAGO, IL 60685 800-262-4554 Agent for Service of Process NANCY FLORES, CIO CT CORPORATION SYSTEM 818 WEST SEVENTH STREET LOS ANGELES, CA 90017 Unable to Locate the Agent for Service of Process'? Reference Information NAIC #: 35289 NAIC Group #: 0218 California Company ID #: 2270-7 Date authorized in California: January 01, 1978 License Status: UNLIMITED -NORMAL Company Type: Property & Casualty State of Domicile: PENNSYLVANIA Lines of Insurance Authorized to Transact The company is authorized to transact business within these lines of insurance. For an explanation of any of these terms, please refer to the glossM. AIRCRAFT AUTOMOBILE BOILER AND MACHINERY BURGLARY COMMON CARRIER LIABILITY CREDIT DISABILITY FIRE LIABILITY MARINE MISCELLANEOUS hnn•//interartive weh incnranre ra anv/whncPrAdh en nrnf ntl opt en nrnf9n Fill=AnnR F/ldnni 1 Company Profile PLATE GLASS SPRINKLER SURETY TEAM AND VEHICLE WORKERS' COMPENSATION Company Complaint Information Company Enforcement Action Documents Company Performance & Comparison Data Composite Complaint Studies Want More? Help Me Find a Company Representative in My Area Last Revised - May 26, 2011 01:14 PM Copyright ® California Department of Insurance Page 2 of 2 httwflinteractive wPh incnrance ra onv/wAive.Pr/iAh e-n nrnf nt1 nPt on nrnf9n R1r)---4nAQ 417Al')AI 1 GRADING ONLY AGREEMENT DATE OF AGREEMENT: June 28 , 2011 NAME OF OWNER/DEVELOPER ibNo �SA R�mf8M v .wG (referred to as "GRADER"). PROPERTY (MAP AND PARCEL NO.):TR 5&35' ' No. of Lots: S (referred to as "PROPERTY"). GRADING PLANS APPROVED ON: j QnE 23 2611 (referred to as "GRADING PLANS"). ESTIMATED TOTAL COST OF GRADING:$] q f 1 28. 0 SURETY: BOND NOS: q 2_9 455 (DS2_ SURETY: -Tue ptrTi tczt1TA_ L YNSugAwc-lx coM PANG -OR- IRREVOCABLE STAND-BY LETTER OF CREDIT NO. FINANCIAL INSTITUTION: -OR- CASH/CERTIFICATE OF DEPOSIT, AGREEMENT DATED: FINANCIAL INSTITUTION: This Agreement is made and entered into by and between the City of Palm Desert, a municipal corporation of the State of California, hereinafter referred to as "CITY", and the 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. RMPUD VCD,760 -1- C:\Documents and Settings\Robert.Hargreaves\My Documents\PALM DESERT Grading Agreement.doc 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. All 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 "A" 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 CITY 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: RMPUBIVCD1760 -2- C:\Documents and Settings\Robert.Hargreaves\My Documents\PAW DESERT - Grading Agreement.doc (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 a replacement security with the City Clerk, the former security may be released. RMPUB\VM760 -3- C:\Documents and Settings\Robert.Hargreaves\My Documents\PALM DESERT - Grading Agreement.doc (3) Alterations to GRADING PLANS. (a) Any changes, alterations or additions to the GRADING PLANS not exceeding ten percent (10%) 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 shall 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 releases 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, determines 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 RMPUBIVCDV60 _ 4 C:\Documents and Settings\Robert.Hargreaves\My Documents\PALM DESERT - Grading Agreement.doc 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) Iniury to Public Improvements Public Property or Public Utilities Facilities. 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 shall bear the entire cost of replacement or repairs of any and all public or public utility property damaged or destroyed by reason of any work done under this Agreement, whether such property is owned by the United States or any agency thereof, or the State of California, or any agency or political subdivision thereof, or by CITY or any public or private utility corporation or by any combination of such owners. Any repair or replacement shall be to the satisfaction, and subject to the approval, of the City Engineer. (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. RMPUBIVCD\760 (a) Default of GRADER shall include, but not be limited to, -5- C:\Documents and Settings\Robert.Hargreaves\My Documents\PALM DESERT - Grading Agreement.doc (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 reflect the actual 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. RMPUBIVCDl760 -6- C:\Documents and Settings\Robert.Hargreaves\My Documents\PALM DESERT - Grading Agreement.doc In the event of GRADER's default underthis 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, appliances, 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 CITY. 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 to pay all costs and expenses incurred by CITY 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 CITY to take an enforcement action with respect to a default, or to declare a breach, shall not be construed as a waiver of that default or breach or any subsequent default or breach of GRADER. RMPUB%VCDi760 -7- Cs\Documents and Settings\Robert.Hargreavea\My Documents\PALM DESERT - Grading Agreement.doc (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 GRADER'S obligations under this Agreement. (10) 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 employees from any and all claims, demands, causes of action, liability or loss of any sort, because of, or arising out of, acts or omissions of 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 RMPuawCDX760 - 8 - C:\Documents and Settings\Robert.Hargreaves\My Documents\PALM DESERT - Grading Agreement.doc indicated that the particular grading design was dangerous or defective and suggested an alternative safe and feasible design. GRADER 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. (11) Personal Nature of GRADER'S Obligations. All 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) Sale 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 may be extended for a period or periods not exceeding a total of two (2) additional years. The extension shall be RMPUBIVC1A760 - j - C:\Documents and Settings\Robert.Hargreaves\My Documents\PALM DESERT Grading Agreement.doc 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 CITY, 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 Vesting of 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 shall be effective on the date it is delivered in person, or, if mailed, on the date of deposit in the United States mail. Notices shall be addressed as follows unless a written change of address is filed with the City: RMPUB\VCD%760 C:\Documents and Settings\Robert.Hargreaves\My Documents\PALM DESERT - Grading Agreement.doc Notice to CITY: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Attn: Public Works Director 1QL'AeJP, . . ONS CA 014-96 SAW Pie. 1 CA (17) Compliance With Laws. GRADER, its agents, employees, contractors and subcontractors shall comply with all federal, state and local laws in the performance of the grading required by this Agreement. (18) Severability. The provisions of this Agreement are severable. if any portion of this Agreement is held invalid by a court of competent jurisdiction, the remainder of the agreement shall remain in full force and effect unless amended or modified by the mutual consent of the parties. (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. RMMB%V('D1760 -11- C:\Documents and Settings\Robert.Hargreaves\My Documents\PALM DESERT Grading Agreement.doc (21) Incorporation of Recitals. The recitals to this Agreement are hereby incorporated into in the terms of this Agreement. (22) Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter. All modifications, amendments, or waivers of the terms of this Agreement must be in writing and signed by the appropriate representatives of the parties. (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; by CITY, by and through its Mayor. P646M04. ► f 0,, T,Kc-. GRADER (Proper Notarization of GRADER's signature is required and shall be attached) CITY OF PALM DESERT By: MAYOR RM MVCM760 - 12 - C:\Documents and Settinge\Robert.Hargreaves\My Documents\PALM DESERT - Grading Agreement.doc CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of M- f -)r�M D f} On--I-VN�:�t'-')O l t before me, -OA-Pe-r" S. W C- l 6, 1� 6—(- e- bate Here Insett Maim and dT{ a ooi'ns Olacar' personally appeared F F'V C- Y SC M P-© C: Name(s) o s Iiotixf ine ft cower • t on 1a 2013 Not Gaen• who proved to me on the basis of satisfactory evidence to be the person(v* whose name(s) is/aw subscribed to the within instrument and acknowledged to me that he/she" executed the same in histhe~r authorized capacity(ies), and that by his/her4h& signature(e) on the instrument the person(s)7 or the entity upon behalf of which the personaey acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: w.s Place Nobly Seal and/or Stamp Above / OPTIONAL Stgneture of Notary Pu c Though the information below is not required by law, it may prove valuable to persons re6ft on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Number of Pages: Signer's Name: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — L limited L) General Top of thumb here Attorney in Fact • Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: O Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited L ' General Top of thumb here ❑ Attorney in Fact O Trustee ❑ Guardian or Conservator ❑ Other. Signer Is Representing: C 2008 Nallonal Notary Associallon • 9350 De Soto Ave.. P O eox 2402 •Chatmofth, CA 81313-2402 • www NMonalNotary.wg fbm e5807 PAordar. CPA Tdl-Free 1-800-870.=7