HomeMy WebLinkAboutRelease Scrty - El Paseo Collection Fashion Plaza X � �_-•r--
CITY OF PALM DESERT
PUBLIC WORKS DEPARTMENT
STAFF REPORT
REQUEST: RELEASE SECURITY FOR EL PASEO COLLECTION
FASHION PLAZA
SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works
APPL{CANT: EI Paseo Collection Fashion Plaza, LLC
73-061 EI Paseo, Ste. 200
Palm Desert, CA 92260
DATE: April 10, 2014
CONTENTS: Trust Deposit
Agreement
Vicinity Map
Recommendation
By Minute Motion, release security for improvements for EI Paseo
Collection Fashion Plaza.
Backqround
The subject property is located at 73-130 EI Paseo on the north side of EI Paseo
between Highway 74 and Sage Lane. A cash deposit in the total amount of $48,775.50
was submitted at the time of permit issuance for off-site improvements to EI Paseo.
Half the improvements were completed in June of 2013 and staff released half of the
deposit. All improvements related to this deposit are now complete. Staff has recently
re-inspected the improvements to insure that they remain as they were when accepted
at final inspection.
Staff recommends that the City Council authorize the release of the remaining cash
deposit in the amount of $24,387.75.
Fiscal Analysis
Staff Report
Release Security for EI Paseo Collection Fashion Plaza
April 10, 2014
Page 2 of 2
Fiscal Analysis
There is no fiscal impact associated with this action.
Prepared By: Dep m t ead: j
� .�(�'Y L CL�C,�
Christina Canales, Assistant Engineer Mark r enwood, P.E.,
Director f Public Works
CLTY COi1NCILACTT(�N
A��i��zovr,n ✓ nr�vtrn
RI:CEIVEI) t)T1I�:R
Paul S. Gibson, Director of Finance
MI'.E"TING UATI; —/G—�2C/
AYES: �' � ��CI��QT/1i�:, � iC'iN-�i Gf,�t'„) 'l-��c2/7iIF/�
Approval: �'n�'�: �'����`' _._
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� Q'/�.�`:____�_�� VI;RIF[CI3 BY: � � ----
n M. Wohlmuth, City Manager Original on File with City Cic�•Ic's i'fice
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CITY OF PALM DESERT
�� TREASURER'S RECEIPT FOR TRUST DEPOSIT
DATE AMOUNT .l s_ `��.'� i '".
DEPOSTTOR'S NAME �. e r'!' I;� 't : r� �L� i'�t�„• } ,0..� �, t
REASON FOR DEI'OSTT t� �-I J I 4 r � � , �., ,r : � u �' �''. `
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RECENED BY
ACCOUNT NUMBER(circle one):
610-0000-228-XX-00
O1 Deposit in Lieu of Bond 11 Landscape&Lighting 24 Art Essay Contest
02 Monumentation 13 Rent Review Commission 25 T[JMF
03 Monterey 170 14 Candidates Deposit 34 Employee Donations
04 Grading Bond 15 Mitigation Fringe Lizard 39 PM10 Deposit
OS Demolition Bond 16 Special Events 49 Athena Award
0�` Faithful Performance Bond 17 Wine�Art Festival 5010 Community Wallc
07 Misc.One-Time Deposit 21 Assessment Dist.Deposit 60 Planning Fee Deposit
OS Multi Species Mitigation 23 Median Const/Landscape �
IS THE DEPOSTf REFZJNDABLE? YES u� NO
CONDTTIONS TO BE ME'T BEFORE REFUNDWG DEPOSIT7
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AMOUNT REFUNDABLE DATE TO BE REFUM)ED
MAIL REF[TND TO:
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FINANCE DEPARTMENT USE ONLY
DATE REFUNDED CHEQC NO. AMOLTNT
NOTE:ATTACH TAPE SHOWING C,ALCIII.ATION OF INTEREST EARNED,ff ANY.
W!1!-PAYOR GRii•7RUSTACCf CAN-AOCa[MIII7d PQ�fK-M1U1.COKlRiOL O.RO�-LSSUQ�Ki DE�C
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November 14, 2012
EI Paseo Collection Fash(on Plaza
73-061 EI Paseo, Suite 200
Palm Desert, Califomfa 92260
Dear Sir or Madam:
Subject: Imarovement Aqreement for the Propertv Located at 73-130 EI
Paseo, Palm Desert
Enclosed far your records is a fufiy executed copy of the subject Agreement. tf you have
any questions or require additional information, please do not hesitate to contact us.
Sincerely,
t �RACHELLE D. KIASSEN, MMC
CITY CLERK
RDK:mgs
Ec�closure (as noted)
�cc/enc: Mark Greenwood, P.E., Director of Public Works
�
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IMPROVEMENT AGREEMENT
DATE OF AGREEMENT: October 22, 2012.
NAME OF DEVBLOPER: El Paseo Collection Fashion Pla7a
(referred to as"DEVELOPER").
NAME OF DEVELOPMENT: �1 Paseo Collection Fashion Plaza
(referred to as"DEVELOPMEIVT").
DEVELOPMENT RESOLUTION
OF APPROVAL NO.: Resolution N/A
(referred to as"Resolution of Approval")
IMPROVEMENT PLANS NO.: �I Z B�
(referred to as"Improvement Plans").
ESTIMATED TOTAL COST OF IMPROVEMENTS:S32,517.40
SURETY: Cash
LETTER OF CR.EDITBOND NOS.: N/A
This Agceement 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
DEVELOPER
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RECITALS
A. DEVELOPER has presented to CITY for approval a Conditional Use
Permit/Precise Plan of Development pursuant to provisions of the CITY's ordinances and
regulations relating to development approval.
B. A Conditional Use Permit/Precise Plan of Development has been approved,
subject to the requirements and conditions contained in the Resotution of ApprovaL The
Resolution of Approval is on ftle in tfie Of�ice of the Directa of Community Developrt�ent and
incor�wreted into this Agreemec�t by reference.
C. In consideration of the approval of a Conditional Use Permit/Precise
Plan of Development for the DEVELOPMENT by the Planning Commission, DEVELOPER
desires to enter into this Agreeme�, whereby DEVELOPER promises to install and complete, at
DEVELOPER's own expense, all the public improvement work required by CITY in connecdon
with the proposed DEVELOPMENT. DEVELOPER has secured this Agreement by improvemeni
security reyuired by ihe City and approved by t�City Attorney.
D. Complete Improvetnent Plans for the constiuction, installation, and
completion of the im�movements have been prepared by DEVELOPER and approved by the City
Engineer. The Improvement Plans numbered as referenced previously in ti�is 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 Improvemem Plaos shall include reference to any
specifications for the improvements as approved by the City Engineer.
E. An estimate of the cost for construction of the public improvements and performing
land development work in connection with the unprovements according to the Improvement Plans
has been made and has been approved by the City Engincer. The esbmated amount is stated on
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Page 1 of this Agreement.The basis for the estimate is on file in the Office of the City Engineer and is
incorporated irno this agreement by reference.
F. CITY has adopted standards for the construction and installadon of improvements
within the CITY. The Improvement Plans have been prepared in confonnance with CITY
standards in effect on the date of the Resolution of Approval.
NOW,THEREFORE,in consideradon of the approval of the DEVELOPMENT,
DEVELOPER and CITY agree as follows:
(1)DEVELOPER's Obligation to Construct Improvements.
DEVELOPER shall:
(a) Comply with all the requirements of the Resolution of Approval, and any
amendments thereto.
(b) Complete at DEVELOPER's own expense, all the public improvement
work required by the Resolution of Approval in confornzance with approved
Improvement Plans within one year from date of execution of this Agreeme�.
(c) Furnish the necessary materials for completion of the public improvements
in conformity with the Improvement Plans.
(d) Acquire, or pay the cost of acquisition by CTTY, and ded�cate all rights of-
way, easements and other interests in real properly for construction and installation
of the public improvements, frce and clear of all liens and encumbrances. The
DEVELOPER's obligations with regard to acquisition by CI'TY of off-site rights-
of-way, easements and other interests in real property shall be subject to a separate
agreement between DEVELOPER and CITY.
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DEVELOPER shall aLso be responsible for obtaining any public or private sanitary
sewer,domestic water,drainage,and/or utility easements or authorization to
accommodate the DEVELOPMENT.
(e) Commence construction of the improvements by the time established in
Section (21) of this Agreement and complete the improvements by the deadline
stated in Section (1)(b) above, uciless a time extension is granted by the CITY as
authorized in Section(21).
(2) Acquisition and Dedication of Easements or Rights-of-Way. If any of the public
improvement and land use development work contemplated by this Agreement is to be
� constructed or installed on land not owned by CTTY or DEVELOPER, no construction or
installation shall be commenced befare:
(a) The offer of dedication to CTTY of appmpriate rights-of-way,
easements or other interests in real property,and apprapriate authorization from the
property owner to allow construction or installation of the improveanents or work,
or
(b) The dedication to, and acceptance by, CTTY of appropriate rights-of way,
easements or other interests in real property,as deternlined by the City Engir�r,or
(c) The issuance by a court of competent jurisdiction pursuant to the State
Eminent Domain Law of an order of possession. DEVELOPER shall comply in all
respects with the order of possession.
Nothing in this Section(2)shall be construed as authorizing or grauting an
extension of time to DEVELOPER.
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(3) urit . DEVELOPER shall at all times guarantee DEVELOPER's performance by
furnishing to CITY, and maintaining, good and sufficient security as required on forms
approved by CITY for the purposes and in the amounts as follows:
(a) to assure faithful performance of this Agreement in regard to said
improvements in an amoutrt of 100% of the estimated cost of the unprovements;
and
(b) to secure payment to any contractor, subconhactor, persons renting
equipment, or furnishing labor and materials for the improvemeats required to be
constructed and installed pursuant to this Agc�eement in the additional amount of
50%of the estimated cost of the improvements;and
The securities required by this Agreement shall be kept on file with the City Clerk.
The terms of the security documents referenced on page l of this Agreement are
incorporated into this Agreement by this reference.If any security is replaced by
another approved security,the replacement shaU: 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 bcen made
a part of and incorporated into this Agrcement.Upon provision of a replacement
security with the City Engineer and filing of a replaoement security with the City
Clerk,the former security may be released.
(4) Altera#ons to Improvement Plans.
(a) Any changes, alterations or additions to the Improvement Plans not
exceeding ten percent (10%) of the original estimated cost of the improvements,
which are mutually agreed�on by CTTY and DEVELOPER, shall not relieve the
unprovement security given for faithful performence of this Agreeme�. In the
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event such changes, alterations, or additions exc�eed 10% of the original estimated
cost of the improvement, DEVELOPER shall provide improvement security for
faithful performance as required by Section (3) of this Ageement for one hundred
percent (100%)of the total estimated cost of the improvements as changed,altered,
or amended, minus any completed partial releases allowed by Section (6) of this
Agceement.
(b) The DEVELOPER shall construct the improvements in accordance
with CITY standards in effect at the time of adopdon of the Resolution of
Approvai. CITY reserves the right to modify the standards applicable to the
DEVELOPMENT and this Agreement, wben necessary to protect the public safety
or welfare or comply with applicable state or federal law or CITY zoning
ordinances. If DEVELOPER requests and is granted an extension of time for
completion of the improvements, CITY may apply the standards in effed at the
time of the extension.
(5) 'on. DEVELOPER shall at all times maintain proper facilities and safe access for
inspaction of the public improvements by CITY inspectors aad to the shops whei+ein any work
is in preparation. Upott completion of the work, DEVELOPER may request a final inspection
by the City Engineer, or the City Engineer's authorized rep�+esentative. If the City Engineer, or the
designaLed representetive, detemunes that the work has bcen completed in acco�dance with tfiis
Agreement,then the City Engineer shall certify the completion of the public improvements to the City
Council.No improvements st►all be finally accepted unless all aspects of the work have been inspected
and completed in aocordance with the lmprovement Plans.When applicable law requires an inspection
to be made by City at a particular sta�e of the work of constructing end installing such impmvements,
CITY shall be given timely notice of DEVELOPER's readiness for such inspection and DEVELAPER
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shall not proceed with additional work until the inspection has been made and the work approved.
DEVELOPER shall bear all costs of inspection and certification. No improvements shall be deemed
completed until accepted pursuant to Saction(16)herein.
(6) Release of Securities. The securities required by tlus Agreement shall be released as
following:
(a) Security given for faithful performance of any act, obligation, work or
agreement shall be relea.sed upon the final completion and acccptance of the act or
work,subject to the provisions of subsection(b)hereof.
(b) The City Engineer may release a portion of the security given for faithful
performance of improvement work as the improvement progresses upon application
thereof by the DEVELOPER; provided, however, that no such release shall be for
an amount less than twenty-five percent (25%) of the total improvement security
given for faithful performance of the improvement work and that the security shall
not be reduced to an amount less than fifty percent (50'/0)of the total 'unpmvement
security given for faithful performance until final completion and acceptance of the
improvement work. In no event shall the City Engineer authorize a release of the
improvemecrt security which would ieduce such security to an amount below that
r�quired to guarantoe tfie completion of the improvement work and any other
obligation imposed by this Agr�emen�
(c) Security given to secure payment to the contractor,his or her subcontractors
and to persons fiunishing labor,materials or equipment shall,at six(6)months after
completion and aocept�nce of the work, be reduced to an amount equal to no less
tl�n 125%of the total clain��ed by all claimants for whom liens have been filed and
of which notice has been given to ti�e CTTY,plus an amount rea.4onably determined
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by the City Engineer to be required to assure the performance of any other
obligations secured by the Security. The balance of the securiry shall be released
upon the settlement of all claims and obligations for which the security was given.
(d) CITY may retain from any security released, an amount sufficient to cover
costs and reasonable expenses and fees,including reasonable attorneys' fees.
(7) Inj_iry to Public Improvements, Public Propertjr or Public Utilities Facilities.
DEVELOPER shall r�place or repair or have replaced or repaired, as the case may be, all
public improvements,public utilities facilities and surveying or subdivision monuments which
are destroyed or damaged as a result of any work under this Agreement. DEVELOPER shall
bear the entire oost 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
pmperty 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.
(8) Permits. DEVELOPER shall, at DEVELOPER's expense, obtain all
necessary permits and licenses for the consauction and installation of the improvements, give
all necessary notices and pay all fces and taxes required by law.
(9) Default of DEVELOPER.
(a) Defautt of DEVELOPER shall include,but not be limited to,
(1) DEVELOPER's failure to timely commence construction of this
Agre�ment;
(2) DEVELOPER's failure to timely complete constr�ction of the
improveme�.s;
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(3) DEVELOPER's failure to timely cure any defect in the
improvements;
(4) DEVELOPER's failure to perforna substantial construction work for
a period of twenty(20)calendar days after commencement of the work;
(5) DEVELOPER's insolvency, appointment of a receiver, or the filing
of any petidon in bankruptcy either voluntary or involuntary which
DEVELOPER fails to discharge within thirty(30)days;
(6) the commencement of a foreclosure action against the
DEVELOPMENT or a portion thereof, or any conveyance in lieu or in
avoidance of foreclosure;or
(� DEVELOPER's failure to perform any other obligation under this
Agreement.
(b) CITY reserves to itself all remedies available to it at law or in equity for
bre�ch of DEVELOPER'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 defauit by DEVELOPER The right of CIT'Y
to draw upon or utilize the security is additional to and not in lieu of any other
remedy available to CTTY. It is specifically recogni7�ed that the estimated costs and
security amounts may not reflect the actual cost of construction or installation of
the improvements and, therefore, CITY's damages for DEVELOPER's default
shall be measured by the cost of completing the re�uired improvements. The sums
provided by the improveme� security may be used by CTTY for the completion of
the public improvements in accordancs with the imp�rovement plans and
specifications contained herein.
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(c) In the event of DEVELOPER's default under this Agreement,
DEVELOPER authorizes CITY to perform such obGgation iwenty (20) days after
mailing written notice of default to DEVELOPER and to DEVELOPER's surety,
and agrees to pay the entire cost of such performance by CITY. CITY may take
over the work and pmsecute the same to completian, by contract or by any other
method CTTY may deem advisable, for the account and at the expense of
DEVELOPER, and DEVELOPER's surety shall be liable to CITY for any excess
cost or damages occasioned CITY thereby. ln 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 DEVELOPER as may
be on the site of the work and necessary for performaace of the work.
(d) Failure of DEVELOPER to comply with the terms of this Agreement shall
constitute consent to the filing by CITY of notice of violation against all pmposed
impmvements in the DEVELOPMENT, or to rescind the approval or otherwise
revert the DEVELOPMENT to acreage.The remedy provided by this subsection(c)
is in addition to and not in lieu of other reme�ies available to CITY. DEVELOPER
agnees that the choice of remedy or remedies for DEVELOPER's breach shall be in
the discretion of CITY.
(e) In the event that DEVELOPER fails to perform any obligation hereunder,
DEVELOPER agre.es to pay all costs and expenses incurred by CITY in securing
performance of such obligations, including but not limited to fees and charges of
architects,engiu�eers,attorneys,other professionals,and court costs.
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(fl The failure of CITY to take an enforcement action with respect to a default,
or to declare a breach, shall not be oonshved as a waiver of that default or breach or
any subsequent defauit or breach of DEVELOPER
(10) DEVELOPER Not Agent of CITY. Neither DEVELOPER nor any of
DEVELOPER's agents,contractors or subcontractors are or shall be considered to be agents of
CITY in connection with the perfom►ance of DEVELOPER'S obligations under this
Agreement.
(f I) �.niury to Work. Until such time as the improvements are accepted by C1TY,
DEVELOPER shall be responsible for and bear the risk of loss to any of the improvements
conshucte� or installed. Until such time as all improvements required by this Agreement are
fully completed and accepted by CITY, DEVELOPER will be responsible for the care,
maintenance of, and any damage to such improvements. CITY shall not, nor shall any officer
or employee thereof, be liable or responsible for any accident, loss or damage,regardless of cause,
happening or occumng to the work or improvements specified in this Agreement prior to the
completion and accep�ance of the work or imp�ovements. All such rislcs shall be the responsibility
of and are hereby assumed by DEVELOPER.
(l2) Warrantv. DEVELOPER shall guarantee or warranty the work done pursuant to
ttus A�reement for a period of one year after fiinal for�►al acceptance of the improvements by
the City Council against any defective work or labor done or defective materials furnished. If
within the warranty period any work or improvement or part of any work or improvement
done, fumished, installed, or constructed by DEVELOPER fails to fulfill any of the
r�uirements of this Agreement or the improvement plans and specifications referred to herein,
DEVELOPER shall withaut delay and without any cost to CITY, repair or replace or
reconsauct any defective or otherwise imsatisfactory part or parts of the work or structure.
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Should DEVELOPER fail to act promptly or in accordance with this reyuirement,
DEVELAPER hereby authorizes CITY, at CITY's option, to perform the work tvventy (2Q)
days after mailing written notice of default to DEVELOPER and to DEVELOPER's surety, and
agrees to pay the cost of such work by CITY. Should CITY determine that an urgency
roquires repairs or replacements to be made before DEVELOPER can be natified, CIT'Y may,
in its sole discretion,make the necessary repairs or replacement or perform the necessary work
and DEVELOPER shall pay to CITY the cost of such repairs.
(13) Environmental Warcantv. Prior to the acceptance of any dedications or
improvements by CITY,DEVELOPER shall certify and warrant that neither the pmperty to be
dedicated nor DEVELOPER is in violation of any environmental law and neither the properiy
to be dedicated nor the DEVELOPER is subject to any exisring, pending or threatened
investigation by any federal, state or local governmental authority under or in connection with
environmental law.Neither DEVELOPER nor any third party will use, generate, manufacture,
produce, or release, on, under, or about the properiy to be dedicated, any hazaraous substance
except in compliance with all applicable environmental laws. DEVELOPER has not caused or
pernutted the release of, and has no knowledge of the release or presence of, any hazardous
substance on the property to be dedicated or the migration of any hazardous substance from or
to any other property adjacent to, or in the vicinity of, the property to be dedicated.
DEVELOPER's prior and present use of the property to be dedicated has not resulted in the
release of any hazardous substance on the property to be dedicated. DEVELOPER shall give
prompt written notice to CITY at the address set forth herein of
(a) Any proceeding or investigation by any federal, state or local governmental
authority with respect to the pr�sence of any hazardous substance on ttte property to
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be dedicated or the migration thereof from or to any other propeRy adjacent to,or in
the vicinity of,the property w be dedicated;
(b) Any claims made or tlu�eatened by any third party against CITY or the
property to be dedicated relating to any loss or injury resulting from any hazardous
seibstance;and,
(c) DEVELOPER's discovery of any occurrence or condition on any property
adjoining in the vicinity of the property to be dedicated that could cause the
property to be dedicated or any part thereof to be subject to any restrictions on its
ownership,occupancy,use for the purpose for which is it is intended,transferability
or suit under any environmental law.
(14) Other Agr��ems. Nothing contained in this Agreement shall preclude CITY from
expending monies pursuant to agi+eements concurrently or previously executed between the
parties, or from entering iuto agreements with other developers for the apportionmeirt of costs
of water and sewer mains, or other improvements, pursuant to the provisions of the CITY
ordinances providing therefore,nor shall anything in this Agreement commit CTTY to any such
appoctionment�
(15) DEVELOPER'S Obligation to Warn Public During Construdioa. Until fom�al final
acceptance of the improvements, DEVELOPER shall give good and adequate warning to the
public of ea+ch and every dangerous condition existent in said improvements, and will take all
reasonable actions to protect the public from such dangerous condition.
(16) Vestin� of OwnershiQ Upon formal final acceptance of the work by CITY and
recordation of the Resolution of Acceptaace of Public Improvements, ownership of the
improvements constnicted pursuant to this Agreement shall vest in CITY.
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(17) Final Acceptance of Work. Acceptance of the work on behalf of CITY shall be
made by the City Council upon recommendation of the City Engineer after final completion
and inspection of all improvements. The City Council shall act upon the Engineer's
recommendation within sixty (60) days from the date the City Engineer certifies that the work
has been finally completed, as provided in Section (6). Such acceptance shall not constitute a
waiver of defects by CITY.
(18) Indemnitv/Hold Harmless. CI'I'Y 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
DEVELOPER, its agents, or employees, contractors and subcontractors in the performance of
this Agreemen� DEVELOPER further agrees to protect, defend, indemnify and hold harniless
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 DEVELOPER, its ageirts, 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 negligenoe of the CI1'Y, 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 agrcement to hold
hamnless shall extend to injuries to persons and damages or taking of property resulting from
the design or construction of said DEVELOPMENT,and the public improvements as provided
herein,and in addition,to adjacent property owners as a consequence of the diversion of waters
from the design and constivction of public drainage systems, strcets and other public
improvemecits. Acceptance by CITY of the improvements shall not constitute an assumption by
CITY of any responsibility for any damage or taking covered by this Soction. C1TY shall not be
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�sponsible fa the design or constniction of the prope�ty 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, unless the particular improvement design was
s�pecifically required by C[TY aver written objection by DEVELOPER submitted to the City
Engineer before approval of the particular improvement design, which objection indicated that the
particular improvemerrt design was dangerous or defective and suggested an alternative safe and
feasible design.
After acceptance of the improvements,the DEVELOPER shall remain obligated to
eliminate any defect in design or dangerous condition caused by the design or construction defect;
however, DEVELOPER shall not be responsible for routine maintenance. Provisions of this
Section shall rea�ain in full force and effect for ten(10)years following the acc.�ptance by CITY
of the improvements. It is the intent of this Section that DEVELOPER shall be responsible for all
liability for design and construction of the improvements installed or work done pursuant to this
Agreement and that CITY shall not be liable for any negligence,nonfeasance,misfeasance or
malfeasance in approving,reviewing,checking,or inspecting any work or conshuction.The
improvement security shall not be required to cover the provisions of tlus Section.
DEVELOPER shall reimbuise CITY for all costs and expenses(including but not limited
to fees and c�harges of architects,engincers,attorneys,and other professionals,and court costs)
incurred by CITY in enforoing the provisions of tlus Section.
(19) Personal Nature of DEVELOPER'S ObGsaations• All of DEVELOPER's
obligations under this agreement are and shall remain the personal obligations of
DEVELOPER notwithstanding a transfer of all or any part of the property within the
DEVELOPMENT subject to tl�is Agreement,and DEVELOPER shall not be entitled to assign
�.o��s�bo�o.i 15
. i
its obligations under this Agreement to any transferee of all or any part of the propeRy wit6in
the DEVELOPMENT or to any other third party without the express written consent of CITY.
(20) Sale or Di�sition of DEVELOPMENT. Seller or other DEVELOPER may
request a novation of this Agreement and a substitution of security. Upon approval of the
novation and substitution of securities.the DEVELOPER may requ�est a release or reduction of
the securities required by this Agreement. Nothing in the novallon shall relieve the
DEVELOPER of the obligations under Section (17) for the work or improvement done by
DEVELOPER.
(21) Time of the Essence. Time is of the essence in the performance of this Agreement.
(22) Time for Commencement of Work: Tune Extensions. DEVELOPER shall
commence substantial construction of the improvements required by this Agreement not later
than six (6) months after the date of this Agneement In the event good cause exists as
deternained by the City Engineer,the tune for commencement of constzuction or completion of
the improvemeats hereunder may be extended for a period or periods not exceeding a total of
two(2)additional years. The extension shall be executed in writing by the City Engineer. Any
such extension may be granted without notice to DEVELOPER's surety and shall not affect
the validity of this Agreement or release the surety or sure�ties on any security given for this
Agreemen� The City Engiaeer shall be the sole and final judge as to whether or not good cause
has been shown to etititle DEVELOPER to an extension. Delsy, other dian 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
DEVELOPER could not have reasonably foreseen and, furthermore, were not caused by or
contributed to by DEVELOPER, shall constitute good cause for and extension of the time for
completion. As a condition of such extension, the City Engineer may c�equie�e DEVELOPER to
s�.o�ts�6o�ao.� 16
, .
furnish new security guaranteeing performance of this Agrcement as extended in an increased
amount as necessary to compensate for any increase in construction costs as determined by the
City Engineer.
(23) No V�'ng of Ri� Performance by DEVELOPER of this Agrcement shall not be
construed to vest DEVELOPER's rights with respect to any change in any zoning or building
law or ordinance.
(24) I�otices. All notices required or provided for under this Agreement shall be in
writing and delivered in person or sent by mail, postage prepaid and addressad 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 Stades mail. Notices shall be addiessed 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,Califarnia 92260 Attn:
Public Works Director
Notice to DEVELOPER: El Paseo Collection Fashion
Plaza
73-061 El Paseo,Suite 200
Palm Desert,CA 92260
Notice to SURETY: N/A
(25) Compliance With Laws. DEVELOPER, its agents, employees, contractors and
subcorn�ctors shall comply with all federal, state and local laws in the performance of the
improvem�ts and land development work required by this Agneement
�.o�s�6o�o.� 17
. . �
(26) Severabiliri. The provisions of this Agreement are severable. If any portion of this
Agi�cement 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.
(27) ions. The captions of this Agreement are for convenience and reference only
and shall not define, explain,modify, limit,exemplify,or aid in the interpretation, conslruction
or meaning of any provisions of this Agreement.
(28) Liti�ation or Arbitration. In the event that suit or arbitration is brought to enforce
the terms of this Agreement, the pr�vailing party shall be entitled to litigation costs and
reasonable attorneys' fees.
(29) Incorporation of Recitals. The recitals to this Agreement are hereby incorporated
into in the terms of this Agieement.
(30) Entire Agi�eement. This Agreement constitutes the entire agreement of the parties
with respect to the subject matter. All modifications, amendments, or waivers of the tesms of
this Agrcemeut must be in writing and signed by the appropriate representatives of the parties.
(31) Interpretation. 'This Agrcement shall be uiterpreted in accordance with the laws of
the State of Califomia
(32) Jurisdiction. Jurisdiction of ail disputes over the terms of this Agreement shall be
in the County of Riverside, State of California.
�.o�s�6o3ao.� 18
�• � r
1N WITNESS WHEREOF,this Agreement is executed by the parties as of the date
hereinabove fust written;by CITY,by and through its Mayor.
EI Paseo Collection Fashion Plaza,LLC
CITY OF PALM DESERT
By Chartwell Family Fashion Plaza, LLC, its
Manager B . �� � .
Y
By F A. F Manager MAYOR
DE L
ATTEST
C CLERK
APPROVEIZAS TO FORM:
:
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CITY A Y
�.o�r�nts�6o�o.� l9
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
ct� .�r .cr.cs� �ct,c^r �cc W`�cY`,oc��rMa;c .r�C .�^c.cr.cr.�c�.cc .cr.cc - �c�` �cr- .i c.c:r
State of Califomia
County of Y�vQ�i C�A
On (�c`�r0�¢�Z�.ZA(2 before me, ��y.t �w`i�ir1_ l�'1Q'i8ry tn��li C ,
on. ►+«.�n..n ana e�.
personally appeared �� A• ��•{�rl �K:)o�sp»�t�>
who proved to me on the basis of satisfactory evidence to
be the person(s)whose �ame(s) is/are subscribed to the
within instrument and adcnowledged ta me that
he/shelthey ewecuted the same in hislher/their authorized
capacity(ies),and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of
� Iwv SMRH which the pe�sOn(S) acted, executed the instrument.
Conwnls:ion s t 922623
M�a►r P■Wic-Californi� � I certify under PENALTY OF PERJURY under the laws
Alrenide County of the State of Calffornia that the foregoing paragraph is
Coa+m. �res Fee t8.20t5+ true and correct.
WITNESS my hand and official seal.
�
���� Signature a�� �
OPTIONAL
rlxwgh the In�nnailon below fs not re�►lred bylew,it may pn�e vah,eble ro persons reyi►tg a,rhe documenr
and ao�ld p�e►�ern 6au�ufenr rernovel end rearfaclunenr a n,ls tam ro arwd�er doa,ment
Description of Att�ached Document
Title or Type of Document: �f�G_Grr�'�.��fl�lr P
Document Date: A C�1[�2Y ?d;Q���l2 Number of Pages: 1�
Signer(s)Other Than Named Abave: IJ � �
�P��N(�)Clairt�ed bY Si9►ier(s)
stgr►ers Narr,e: '�P.� �•�el T` Sig►ers Name:
O In�vidual L7 Individual
C7 Corporate Officer—Tide(s): O Corporate Officer—Title(s):
Ci Partner—L!Umited U Cianeral ❑ParMer—C.]Limited U Generel
Ll Attomey in Fact ❑Attomey in Fact
O 1lustee roa a m�nem ❑Trustee Top a uw�n r,�re
C) Guardlan or Conservator ❑Guardian or Conse r
�bther:� ❑Other:
Signer Is Representlng: Signer ts eser��ng:
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CALIFORNIA AL4PUAPOSE ACKNOWLEDaMENT
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� �� State of California
� County Of Riverside
�Iov�ier 14, 2012 before me, M• G. Sanchez, Notary Public
� H.n 4r.n Nam.ana ritl.d un '
� personatly appeared Robert A. Spiegel
��t
?� "��'�a�`�
�
,
who proved to me on the basis of sadsfactory
� evidenoe to be the person(� whose name(�) is/�y@ �
subscribed to the within inst►ument and acknowledged
' to me that he/�r executed the same in
� hisl� autl�orized capacity4�l, and that by
hi� signature(�j on the instn�ment the
M.a.SANCHEZ person{�j, or the entity upon behaff of wh(ch the
Commicabn a 190633g person(� acted, executed the fnstrument.
� Nomry Public-Cdibrni�
Riverside County � i certdy under PENALTY OF PERJURY under the
� Comm.E iroa Oct 29,2011
laws of the State of Califomia that the foregoing
paragraph is true and correct.
� WITNESS my hand an o ' I seal.
�
��� Signature: /� —�
a�c.r�y sw�.
� OPTIONAL ���"�
� T�� and��below!s not requlred by law,R maY Prw�e Pe�+� obctanent �
P►e�'ent lrauduJenr ren►oval and�ttsch+nent a this/orm to ano(her abownent
� D�scription o�Attsched�o«rrr�ent
� TiUe or Type of Docume� �Z/�?�I�21G�iJ�'�1i����'C�er77��- E/.Q?S,C'U �G//�f�i<yi�.�ii�»
DocumeM Uate: �L7'�c:l�ei' �� v�0/� v _.Number af P
ages: �!
� Signer(s)Other Than Named Above: �
� Capacity(i�sj Claimad Si �
� �Ks) �
� Signer's Name: Robert A. Spiegel Signers Name:
� O Corpcxate Officser—Title(s): O Corporate O(Ncer—Tftle(s):
D Individual p �
� O Partner---�LJm�ed C7(3eneral Top a unur�i,ere Ci I��tne —�Limited O C�enerel T a i►rmb
ene � � t�
� O Attomey In Fact O Attomey i act �
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fio t3uarc#en or Conservator O�uardian w Co or
� � �1@I':�Iavnr \ ❑QIt1Af:
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� signer Is Represent�g: Signer Is Represenang:
� City of Palm Deaert
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