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Home My WebLink AboutRelease Scrty - 73520 El Paseo - Wessman Dvlpmnt CITY OF PALM DESERT �/,� /l PUBLIC WORKS DEPARTMENT STAFF REPORT REQUEST: RELEASE SECURITY FOR SAN PABLO VILLAGE SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works APPLICANT: Wessman Development 555 S. Sunrise Way, Ste. 200 Palm Springs, CA 92264 DATE: February 13, 2014 CONTENTS: Trust Deposit Agreement Vicinity Map Recommendation By Minute Motion, release security for improvements for San Pablo Village. Backqround The subject property is located at 73-520 EI Paseo on the northeast corner of San Pablo Avenue and EI Paseo. A cash deposit in the total amount of $15,552 was submitted at the time of permit issuance for off-site improvements to EI Paseo. All improvements related to this deposit are complete. Staff has recently re-inspected the improvements to ensure that they remain as they were when accepted at final inspection. A cash bond in the amount of 10 percent of the faithful performance bond was submitted for maintenance to be held for one year as required by the municipal code. Staff recommends that the City Council authorize the release of the faithful performance and labor and materials bonds and accept the cash deposit for maintenance for one year. Staff Report Release Security for EI Paseo Village February 13, 2014 Page 2 of 2 Fiscal Analysis There is no fiscal impact associated with this action. h Prepared By: Depart�n�n ad: � �✓ � ;� ; � ��t,c�.�� , � �� , Christina Canales, Assistant Engineer Mark G e wood, P.E., Directo of Public Works CITY COUNCIL ACTION API'I20VED � i�rNiT;D RF.CI;[VED OTEiF,R Paul S. Gibson, Director of Finance M[?[;TING DATE, - " -" - AYrs:1�'1s�r�, I�I,�rn � K: � �,��,�i�. �f, Tzt1.r�::� n�c�rs: �br�F� — A roval: A�3��;�`'�: ��"�> _ _ A13fiTAIN: P�l r>d�� VEf��F��;�� I�Y: � �l7l� fL��--- � — Origival on I�ilc with City Clc►��:'s ffrf� i� J n M. Wohlmuth, City Manager i � � 5214 CTTY OF PALM DES RT TREASURER'S RECEIPT FOR TRUST DEPOSIT DA'1'E I AMOUNT.� �� `, �Z. DEPOSTfOR'S NAME REASON FOR DEPOSTT ' _r � RECENED BY � � �� ACCOUNT NUMBER(cincle one): 610-0000-22$-XX-00 O1 Deposit in Lieu of Bond 11 Landscape 8t Lighti�g 24 Art Fssay Contest OZ Monurnentation 13 Rent Review Commission 25 TUMF 03 Monterey 170 14 Candidates Deposit 34 Employee Donations 04 Crrading Bond 15 Midgation Fringe Lizard 39 PM10 Deposit OS Demolition Bond 16 Special Events 49 Athena Award � Faithfiil Performance Bond 17 Wine�Art Fesdval 5010 Community Walk Misc.One-Time Deposit 21 Assessment Dist. Deposit 60 Planning Fee Deposit 08 Multi Species Mitigation 23 Median Const/Landscape IS THE DEPOSTT REFUNDABLE? YES NO C NDITIONS TO MET BEFORE R IN D � AMOUNT REFUNDABLE DATE TO BE REFUNDED MAIL REFUND TO: � - -- - - - - -- -- - - - FINANCE DEPARTMENT USE ONLY � DATE REFUNDED CHECK NO. AMOUNT NOTE:ATTACH TAPE SHOWING CALCLR.ATION OF INTEREST EARNED,IF ANY. �i�er: Ln i1��: ri� DTawer: 1 vate: 6/+�Fi13 66 itec2iat no: 1�OC� ?� ik�iGZ 1)EPiSi;� �_� , 1.6b Si��:c.6E irans nuacer: 55�26" i9ULT,�'t.E 1EriDEk Trans oate: 618b/13 T2a�: i"t:li:5� WHT MYpt QRN-iRI�T'AOC.T CAN-ACCOIAliTNG PINK•NUM.COKIAOI. O.ROD•ISSUING D�TC CITY Of PflIM DES � R1 �'��'''� 73—S�o Frtsa.WeatNc DRivs PALM UB�HNT�CALIFORNIA 912G0-257R ret:76o 346—o6ii infot�cicynfpalmJcscrc.or� June 18, 2013 Mr. John Wessman Manager Wessman Hoidings, LLC 555 S. Sunrise Way, Suite 200 Palm Springs, Califomia 92264 Dear Mr. Wessman: Subject: )morovement As�reement for the Real Proaertv Located at 73-520 El Paseo. Palm Desert(San Pablo Villas�e) Enclosed for your records is a fully executed copy of the Improvement Agreement. If you have any questions or require additional information, please do not hesitate to contact us. Sincerely, RACHELLE D. KLASSEN, MMC CITY CLERK RDK:mgs closure (as noted) , cc/enc: Mark Greenwood, P.E., Director of Public Wo�cs � ts...��..«..�..M� � d Cn� 0��l� /OU/ W'' . IMPROVEMENT AGREEMENT :.. . , . � . � - DATE OF AGREEMENT:, June 4, 2013 NAME OF DEVELOPER: Wessman Holdings,LLC (referred to as"DEVELOPER"). NAME OF DEVELOPMENT: 73520 El Paseo(San Pablo Village) ' (referred to as"DEVELOPMENT"'). DEVELOPMENT RESOLUTION OF APPROVAL NO.: Resolution N/A (referred to as"Resolution of Approval") IMPROVEMENT PLANS NO.: G-1294 {referred to as"[mprovement Plans"). ESTIMATED TOTAL COST OF IMPROVEMENTS: ��p�� SURETY: CASH LETTER OF CREDITBOND NOS.: N/A 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 DEVELOPER. �.o�s�6a�o.� � , . � �� •��r, a: �+ ; RECITALS � _.t^. , ,i_ �;�. A. DEVELOPFR 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 Resolution of Approval. The Resolution of Approval is on file in the Office of the Dirtictor of Community Development and incorporated into this Agreement by reference. C. In considerstion 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 Agreement, whereby DEVELOPER promises to install and complete, at DEVELOPER's own expense, all the public improvement work required by C1TY in connection with the proposed D�VELOPMENT. DEVELOPER has secured this Agreement by improv�ment security requir�d by the City and approved by the City Attomey. D. Complete Improvement Plans for the constc�ction, installation, and completion of the improvements have been prepared by DEVELOPER and approved by the City Engineer. The Improvement Plans numbered as referenced previously in this Ageement are on file in the Office of the City Engineer and are incorporated into this Agreement by this reference. All references in this Agroement to the Impmvement Plans shall include reference to any spe.cifications 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 improvements according to the Improvanent Plans has been made and has bcen approved by the City Engineer. The estimated amount is stated on �.oqr�s�6o�o.i Page 1 of this A�neement.The basis for thc estimate is on f le in the Office of the City Engineer and is . , �:i.. incorporated into this agreement by reference. F. C1TY has adopted standards for the construction and instailation of impmvements within the CITY. The Improvement Plans have been prepared in conformance with C1TY standards in effect on the date of the Resolution of Approval. NOW,THEREFORE,in consideration 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 conformance with approved Improvement Plans within one year from date of execution of this Agreement. (c) Furnish the necessary materials for compietion of the public improvements in confornuty with the Improvement Plans. (d) Acquire, or pay the cost of aoquisition by CITY, and dedicate all rights of- way,easements and other interests in reai property for construction and installation of the public improvements, fi�ee and clear of all liens and encumbrances. The DEVELOPER's obligations with regard to acquisition by CITY of off-site rights- of-way, easements and other interests in real property shall be subject to a separate agreement beiween DEVELOPER and CITY. �.o�s�6o3ao.i 3 DF.VELOPER shall also be responsiblc for obtaining any public or private sanitary sewer,domestic water,drainage,and/or utility easements or authorization to accommodate tt�e DEVELOPMENT. (e) Commence construction of lhe improvements by the time established in Section (2l) of this Agreement and complete the improvemenis by the deadline statec} in Section (lxb) above, unless a iime extension is granted by the C1TY as authorized in Sxdon(2l). (2) Acquisition and Dedication of Easements or Rights-of-Way. If any of the public improvement and land use development work contempiated by this Agcement is to be constructed or installed on land not owned by CITY or DEVELOPER, no construction or installation shall be commenccd before: (a) The offer of dedication to CITY of appropriate rights-of-way. easements or other interests in real p�perty,attd appropriate authorization from the property owner to allow construction or installation of the improvements or work, or (b) The dedication to, and acceptance by, CITY of appropriate rights-of way, easements or other interests in real property,as determined by the City Engineer,or (c) The issuance by a court of competent jwisdiction 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 Seclion(2)shall be construed as authorizing or granting an extension of time to DEVELOPER �.o��s�bo�o.i 4 (3) Securitv. DEVELOPER shall at all times guarantee DEVELOPER's performance by furnishing to CITY, and maintaining, sood and su�cient 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 amount of 100% of the estimated cost of the improvements; and (b) to securc payment to any contractor, subcontractor, persons renting . equipment, or furnishing labor and materials for the improvements required to be constructed and installed pursuant to this Agreement 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 1 of this Agreement are incorporated into this Agreement by this reference. If any security is t�eplaced by another approved security,the replacement shall: 1)comply with all the requirements for secwity in this Agreement;2)be provided to the Ciry Engincer to be filed with the City Clerk and,upon filing,3)shal!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 securiry may be relea.sed. (4) Alterations to Improvement Plans. (a) Any changes, alterations or additions to the Improvement Plans not exc.eeding ten percent (10%) of the original estimated cost of the im�ovements, which are mutually agrced upon by CITY and DEVELOPER, shall not relieve the improvement security given for faithful performance of this Agreement. In the �.o�xs�6o340.i S 0 . • evcnt such changes, alterations, or additions excced i 0/o of thc original cstimated cost of the improvement, DEV�LOPF.R shall provide improvemea�t security for faithful performance as required by Section (3) of this Agreemeni for one hundred percent(100%)of thc lotal cstimated cost of the improvemenLs as changed,altered, or amended, minus any completed partial releases allowed by Section (6) of this Agrecment. (b) The DEVELOPER shaU construct the improvements in accordance with CIT'Y standards in effect et the time of adoption of the Resolution of Approval. CTI°Y reserves the right to modify the. standards applicable to the DEVELOPMENT and this Agreement, when necessary to protect the pubiic 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 tnay apply the standards in effect at the time of the extension. {S) 'on. DEVELOPER shatl at all times maintain proper facilities and safe access for inspaction of the public improvements by CITY inspectors and to the shops wherein any work is in prepacation. Upon completion of the work, DEYELOPER may raquest a final inspection by the City Engineer, or the City Enginoer's authorizad representative. If the City Engineer,or the desi�eted r�presa�tative, detennines that the work has been completed in ac�cordence with this Agreemart,then tfi�City Engineer shall certify the completion of the public improvements to the City Council.No improvements shaU be finally acoeptod unless all aspa�s of the work have baen inspacted and completed in acco�ence with the Improvement Plans. When applicable law requires an inspeaion to be made by City at a particular stage of the work of constructing and installing such improvements, CITY shall be given timely notioe of DEVELOPER's raadir�ess for such inspection and DEVELOPER �.o�+s�bo�+o.i 6 shall not proceed with additional work until the inspection has bcen made and the work approved. DEVELOPER shall bear all costs of inspection and certification. No improvements shall be dcemed completed until accepted pursuant to Section(16)herein. (6) Release of Securities. The securities required by this Agreement shall be released as following: (a) Security given for faithful performance of any act, obligation, work or asreement shall be released upon the final comptetion and acceptance of the act or work,subject to the provisions of subsection(b)hereaf. (b) The City Engineer may release a portion of the security given for faithful perforn�ance of improvement work as the improvement progre.sses 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 faithfiil performance of the improvement work and that the security shall not be reduced to an amount less than fifty percent(50%) of the total improvement security given for faithful performance until final completion and acceptance of the improvement work. In no event shall the City Engineer authoriu a release of the improvement security which would reduce such security to an amount below that required to guarantee the complexion of the improvement work and any other obligation imposed by this Agreemen� (c) Security given to secure payment to the contractor,his or her subcontractors and to persons furnishing labor,materials or equipment shall,at six(6)months a.fter completion and acceptance of the work, be reduced to an amount oqual to no less than 125%of the total claimed by all claimants for whom liens have been filed and of which notice has been given to the CTTY,plus an amount reasonably determinad �s.o�r►s�bo3ao.� 7 by the City Gngincer to be roquired to assure thc performancc ot' any other obligations socurai by thc Security. "Che balance of thc security shall be releascd upon the settlement of all claims and obligations for which the security was given. (d) CITY may retain from any security released, an amount sui�icient to cover cosis and reasonable expenses and fees,including reasonable attorneys' fees. (7) Injury to Pu lic Im�rovements, Public Property or Public Utilities Facilities. DCVELOPER shall replace or repair or have replaced or repaired, as the case may be, a!l public improvemenis,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 cost of replacement or repairs of any and all pnblic or public utility properry damaged or destroyed by reason of any work done under this Agreement, whether such property is ovmed by the United States or any agency thereof,or the State of Califomia,or any agency or political subdivision there�f, or by CITY or sny 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 nece.ssary pernuts and licenses for the constniction and installation of the improvements, give all necessary notices and pay all fees and taxes required by law. (9) Defautt of DEVELOPER. (a) Default of DEVELOPER shall include,but not be limited to, (1} DEVELOPER's failure to timely commence construction of this Agre;ement; (2) DEVELOPER's failure to timely comple,te construction of the improvements; �.o��ao�o.� 8 (3) DEVELOPER's failure to timely cure any det'ect in the improvements; (4) DEVELOPER's failure to perform 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 petition 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 ('n 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 breach 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 CTTY's damages in event of default by DEVELOPER. 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 spocifically recognized 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 required improvements. The sums provided by the improvement security may be used by CITY for the completion of the public improvements in accordance with the improvemcnt plans and specifications contained herein. �.o�s�eo�o.i 9 . � � (c) ln the event of DEVELOPER's defauit undcr this Agreement, DEVELOFER aulhorizes CITY to peri'orm such obligation twenty (20) days after mailing written notice of default to DEVCLOPER and to DEVELOPFR's surety, and agrees to pay the entire cost of such performance by CITY. CTTY may take over the work and prosecute 1he same to completion, by contraci or by any other method CITY 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. In such event, CITY, without liability � for so doing, may take possession of, and utiliz�e 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 performance 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 improvements 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 remedies available ta CT'TY. DEVELOPER agrees that the choice of remedy or reuiedies for DEVELOPER's bre�ch shall be in tl�e discretion of CITY. (e) In the event that DEVELOPER fails to perform any obligation hereunder, DEVELOPER 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 architects,engineors,attorneys,other professionals,and court costs. �s.o9s��s�bo�o.i l 0 (� The faifure of CITY 10 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 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 pert'ormance of DEVELOPER'S obiigations under this Agreement. (t 1) l�jury to Work. Until such time as the improvements are accepted by CITY, DEVELOPER shall be responsible for and bear the risk of loss to any of the improvements constnacted 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 occurring to the work or improvements specified in this Agreement prior to the completion and acceptance of the work or improvements. All such risks shall be the resp�nsibility of and are hereby assumed by DEVELOPER. (12) Warranri. DEVELOPER shall guarantce or wananty the work done pursuant to this Agreement for a period of one year after final formal 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, fiunished, installed, or constructed by DEVELOPER fails to fulfill any of the requirements of this Agreement or the impmvement plans and specifications referred to herein, DEVELOPER shall without delay and without any cost to CITY, repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure. �.o��bo�o.i 11 Should DEVELOPER fail to act promptly or in accordance with this requirement. DEVELOPER hereby authori�s CITY, at CITY's option, to perE'ortn the work twenty (20) days after mailing wririen 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 requires rcpairs or replacements to be made before DEVELOPER can be no6fied, CITY may, in its sole discrerion, make the necessary repairs or reglaoement or perfortn the necessary work and DEVELOPER shall pay to CITY the cost of such repairs. (i3) Environmental Warrantv. Prior to the acceptance of any dedications or improvements by CITY,DEVELOPER shall certify and warrant that neither the property to be dedicated nor DEVELOPER is in violation of any environmental law and neither the property to be dedicate� nor the DEVELOPER is subje�t to any existing, pending or threatened investi�tion by any federal, state or local governmental authority under or in comlection with environmental law.Neither DEVELOPER nor any third party wiU use, generate, maaufacture, produce, or release,on, under, or about the property to be dedicatcd, any ha�.ardous substance except in compliance with all applicable environmental laws. DEVELOPER has not caused or permitted the release of, and has no knowledge of the release or presence of, any hazardous substance on the pmperty to be dedicated or the migration of any ha�srdous 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 properiy to be dedicated has not resulted in the release of any hezardous 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 federaI, state or lacal governmental authority with respect to the presence of any hazardous substance on the property to �.a�xs�6o�o.i 12 be dedicated or the migration thereof from or to any other property adjacent to,or in the vicinity of,thc property to be dedicated; (b) Any claims made or threatened by any third party against CITY or the property to be dedicated relating to any loss or injury resulting from any hazar�lous substance;and, (c) DEVELOPER's discovery of any occurrence or condition on any property adjoining in the vicinity of the property to be dedicated that could cause the property to be dedicated or any part thereof to be subject to any restrictions on its ownership,occupancy, use for the purpose for which is it is intended,transferability or suit under any environmental law. (14) Qther Aareements. Nothing contained in this Agreement shall preclude CITY from expending monies pursuant to agreements concurrendy or previously executed between the parties, or from entering into agreements with other developers for the apportionment 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 CIT'Y ta any such apportionment. (15) DEVELOPER'S Obli¢aiion to Warn Public During Construc.tion. Until formal final acceptance of ihe improv�ments, DEVELOPER shall give good and adequate waming to the public of each and every dangerous condition existent in said improvements, and wil) take all reasonable actions to protect ihe public from such dangerous condition. (16) Vestin� of OwnershiR Upon forma! final acceptance of the work by CITY and recordation of the Resolution of Acceptance of Public Impmveraents, ownership of the improvements constructed pursuant to this Ageement shall vest in CIT'Y. �.o�+s�6o3�0.� 13 (l7) Final Acceplance of Work. Acceptancc oi'the work on behalf of CiTY shaH be made by the City Council up�on recommendation of the City Hngineer after final completion and inspection of all improvemenis. The City Council shall act upon the Engineer's recommendation within sixty (60)days from the date the City Engineer cerlifies that the work has been finally completed, as provided in Section (6). Such acceptance shal) not constituie a waiver of defects by CITY. (18) Indemnitv/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 DEVELOPER, its agents,or employees, contractors and subcontractors in the perforrnance of this Agreement. DEVELOPER further agrees to protect,defend, indetnnify and hald harmless CITY, its of�'icials,boards and commissions,and members thereof,agents and employee,s 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 agents, employees, contractors and subcontractors in the performance of this Agreement,except far such claims,demands,causes of action, liability, or loss arising out of the sole �ctive negligence of the CITY, its officials, boards, commissions, the members thereuf, ageats, and employces, including atl claims, demands, causes of action, liability, or loss because of, or arising out of, in whole or in part, the design or constn�ction of the improveraents. This indemnification and agi�eement to hold harmless s1�a11 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 ownets as a consequence of the diversion of waters from the design and oonstruc6on of public drainage systems, strcets and other public improvements. Acceptanc� by CITY af the improvements shall not constitute an assumption by CITY of any raponsibility for any damage or taking covered by this Section. CITY shall not be �.o�s��+a.� 14 r • responsible for the design or construction of the property to be dedicated or the impcovemeats pursuant to the approved improvement plans or map,regar+dless of any negf igent action or inaction taken by C[TY in approving the plans or map, unless the particular improvement design was specifically required by CITY over written objection by DEVELOPER submitted to the City Engineer before approval of the particular improvement design,which objection indicated that the particular improvement design was dangerous or defeciive 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, DEVELAPER shall not be responsible for routine maintenance. Provisions of this Section shalI remain in full force and effect for ten(10)years following the acceptance by C1TY of the improvements. lt is the intent of this Section that DEVELOPER shail 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 malfeasanct in approving,reviewing,checking,or inspecting any work or const�vction. The impmvemern sccurity shall not be required to cover the provisions of this Section. DEVELOPER shall reimburse CITY for all costs and expenses(including but not limitod to fee.s and charges of architects,engineers,attorneys,and other professionals,and court cosis) incuned by CITY in enforcing the provisions of this Section. (19) Personal Nat�n� of DEVELOPER'S Obli ations. 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 this Agreement,and DEVELOPER shall not be entitled to assign �.o�s�6o3aoa I S . its oblisations under this Agreement to any tcansferee of all or any part of the properiy within the DEVELOPMENT or to any other third parly without the express writlen consent of CITY. (20) Sale or Di�position of DEVELOPMENT. Seller or other DEVELOPER may req�si a novaiion of this Agroement and a subslitution of security. Upon approval of the novation and substiiuiion of securities,the DEVEL�PER may request a release or reduction of the securitees required by this AgreemenL Nothing in the novation shall relieve the DEVELOPER of the obligations under Section (l7) for the work or improvement done by DEVELOPER. (2l) Time of �E�nce. Time is of the essence in the performance of this Agreemen� (22) Time for Commencement of Work: Time Extensions. DEVELOPER shall commence substantial construction of the improvements required by this Agrcement not later than six (6) months after the date of this Agreement. In the event good cause exists as deteimined by the City Engineer,the time for commencement of construction or completion of the improvements hereunder may be extended for a period or periods not excxeding a total of two(2)additional yesis. 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 Agrcement or release the surety or sureties on any security given for this Agc�eemen� The City Enginee,r shall be the sole and finsl judge as to whether or not good cause has been shovm to entitle DEVELOPER to en extension. Delay, other than delay in the commencement of work, resulting from an act of C1TY, act of God, or by storm or inclement weati�er,strikes, boycotts or similar political actions which prevents the conducting of work,which DEVELOPER could not have reasonably foresan and, furthermore, wer� not caused by or contributed to by DEVELOPER, shall constituce good cause for and extension of the time for completion. As a condition of such ext,ension, the Ciry Engineer may require DEVELOPER to v�.o�s�6o�o.� 16 . furnish new security guaranteeing performance of this Ap,reement as extended in an increased amount as necessary to compensate for any increase in constcvction costs as detennined by the City Engineer. (23) No Vestingof Ri ts, Performance by DEVELOPER of this Agreement shall not be construed to vest DEVELOPER's rights with ccspect to any change in any zoning or building law or ordinance. (24) Notices. Ail nolices required or provided for under this Agreement shali be in writing and delivered in person or sent by mail, postage prepaid and addressed as provided in this Sec6on. 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 thc City: Notice to CITY: City of Palm Desert 73-510 Fred Waring Drive Palm Desert,California 92260 Arin: Public Works Director Notice to DEVELOPER: wE�yy►�J�j �}p��/(�5r LLG 5�' S• 3u�twg� �y �zoe� �aLwt �p,��N��s C� �� . Na�ce to svxE�r�r: �/� (25) ComRliance With Laws. DEVELOPER, its agents, employees, co�rtractors and subcontractors shall comply with all foderal, state and local laws in the perfonnance of the improvements and land development work required by this Agreement. �.o�xs�bo�o.� l 7 (26) Scvcr�bililv. The provisions of'this A�reemenl are scverAble. [i'any portion of ihis 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. (2'n Capti,Qns. 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 pmvisions of this Agreement. (28) Litigation or Arbitration. In the event that suit or arbitration is brought to enforce the terms of this Agreement, the prevailing party shall be enritled 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 Agreement. (30) Entire Aweement. 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 Agrcemeat must be in writing and signed by the appropriate representatives of the parties. (31) Interpretatio� This Agraement shall be u►terpreted in accordance with the laws of the State of Califoinia. (32) Jurisdiction. Jurisdiction of all disputes over the terms of this Agreement shall be in the County of Riverside,State of California. �.o�xs�bo�o.i 18 IN WITNESS WHEREOF,this Agreement is executed by the parlies as of the daie hereinabove first written;by CITY,by and through its Mayor. WESSMAN HOLDINGS, LLC CTi'Y OF PALM DESERT DEVELOPERS " � _ By ' � ! '',� VE PER � � OR ATTEST C CL APPROVED AS TO FORM: , „� , CITY A O Y �.o�s�so3ao.i 19 STATE OF CAGIFORNIA ) COUNTY Or RIVERSIDE ) On ..,�aE y,�ao13 ,2010 befare me, M•1�0�,� ,Notary Public,personatly appeared .So N N Wcss M 1��1 ,who proved to me on the basis of satisfactory evidence to be the persor�whose name{�r}is/ane subscribed to the within instrument and acknowledged to me that hel��efl�ey executed the same in his/i�e�Ji�e�r authorized capacity�,and that by hisfharJt�eir signature�on the instn�ment the person�df 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 Califorcria that the foregoing pazagraph is true and correot. WITi�iESS my hand offici seal. Signature: (seal) I tl i�I�MMM I 1� �M�i�-C�MM 99999.0999915760340.1 CALIFORNIA AL4PURppgE ACKN011MLEDQMEMT �� : � State of Califomia � County of Riverside � Junp 18 2p13 �►'� ' before me, 1"�• G. Sanchez, Notary Public �� ►�.m..n wr�.«,a Tw.a r,.onk« pel'SonaNy appesred Jan C. Harnik -----------�- � _��----------------- � �fi' Nenr(. a s) � �� who proved to me on the basis of saUsfactory � evkience to be tlie person�) whose name(� is/ene�c �� subscribed to tlie wnhin instnur�ent and acknowledged to me that ire/shelfhey executed the same in � ids/herdheirc autho�ized capadtYC�, and That by � h�rJherkl�emc signature(s) on the instrument the � � M.G.SAHCHEZ �� or the entity upon behalf of which the � �fi �ort��a�on�t�9 Person(s)acted, executed the hstrument. � Noa�r Pua��-c■nrorM. fi R�ventde Caunri I certify under PENALTY OF PERJURY under the �' Comm.Ex �ea Oct 29,201�+ laws of the State of Califomia that the foregoing � paragraph is Uue and oorrect. � � � � WITNESS my hand and icial seaL .?� fi !� � fi �� s��t��e: r � � � 7�ou�p►►n►e�eb�esbw rs n�oc►„q,rr�P170�M►►►a prove v�,eare t� rey�a, end�Ytd pev�nt harxAdent►�mowal anaf realfsaMnent o/tl�is lbvm anotl►er ' ' DesCriptiorl of AtteCllsd ppcument wessman Holdings, LLC � Title or Type of Documer�ImProvement Agmt 73520 El Paseo (G-1294) p��pa�: June 4, 2013 Number of Pages: Signer(s)Other Then Named�4bove: . c°��h►ii�s)ctm'ned bY�Ks) � Signe�s Name; Jan C. Harnik � Signer's Name: � ❑ Corporate Officer—7itle(s): ❑ rate OHicer—Tide(s): � t] indlviduai ❑individ �� L"1 Partner—f7 Limited O(3er�ai ToP a nKr+,�nMe O Panner— Umited CJ Oenerel Top d thumb hKe O Attomey!n Fact . O Attomey(n F � C7 Trustee O Tivstee � O GuaNfen or Conservator ❑C3uardian or Consery � � � Other. Mavor !]Other: � � Signer Is RepresenHng: Slgner ts Represer�ing: � Cit� of Palm Desert -srec. 0200➢N�IoiwlNoeryAyoalwoe•lWonWou�y.o�p•t�o0dlBNOTApYp-l00�l7s-0!¢7) . �'� Ilrm�UY07 SAN PABLO VILLAGE APN:d2T153012 APN:627152015 ��73� House#:T3555 APN:RW Housa�:0 APN:627093015 House�:73486 4 A1f APN:RW House�:O APN:RW House#:0 APN:82721 T01 S House#:73633 APN:6Z7211022 APN:a2721102 �u�:73605 House#:451 ZO :827212005 Flouseil:73840 N:827262007 House�:73B55 APN:827261007 Houae�:73585 APN:6Z7262011 House�:0 Legend — Circulation Network — Streets 1:1,993 O �1 Cily Boundary ❑ Paroels(12014) � CNy Boundary Nobs