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Home My WebLink AboutRelease Scrty - El Paseo Collection North � CITY OF PALM DESERT ' �' � �� PUBLIC WORKS DEPARTMENT STAFF REPORT REQUEST: RELEASE SECURITY FOR EL PASEO COLLECTION NORTH SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works APPLICANT: EI Paseo Collection North 73-061 EI Paseo Palm Desert, CA 92260 DATE: March 13, 2014 CONTENTS: Trust Deposit Agreement Vicinity Map Recommendation By Minute Motion, release security for improvements for EI Paseo Collection North. Backqround The subject property is located at 73-100 EI Paseo on the north side of EI Paseo between Highway 74 and Sage Lane. A cash deposit in the total amount of $32,133 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 insure 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 deposits and accept the cash deposit for maintenance for one year. Staff Report Release Security for EI Paseo Collection North March 13, 2014 Page 2 of 2 Fiscal Analysis There is no fiscal impact associated with this action. Prepared By: Department Head: �, = C�c�'�a.�',�,� -� � Christina Canales, Assistant Engineer Mark Greenwood, P.E., Director of Public Works �� Paul S. Gibson, Directorof Finance �'��YC'��iNCtLACT10N A�'�'ItOWI?D � Di+;NIF,D Id�;Ci?tVI:D O"THT:R A r val: � 1��F�,��."T 9I�t; I?A'I'E .3— I �— :�C 1 EO`r'1�;;�: '� 'C�Yl C�-� � � ��.,� � � � �i �-�� 1��3�:5:N�+�� a��sFNT: ��n�- n M. Wohlmuth, City Manager ��;�.�,A�,�. � �,�,� V[�.Rik'IE1) BY: �" �� Oi•iginr►1 on File witl� City Cle�•k's O ice � . 5237 � � CITY t?F PALM DESERT � TREASURER'S RECEIPT FOR TRUST DEPOSIT DATE___��.�J_—.�-'— _AMOUNT f z (� O DEPOSITOR'S NAME REASON FOR DEPOSIT a'�t P,o Cr L- � p, Ci��e.!,'�ls�t RECENED BY G��r��iv ACCOUNT NUMBER(circle one): 610-0000-228-XX-00 O1 Deposit in Lieu of Bond 11 Landscape&Lighting 24 Art Essay Contest 13 Rent Review Commission 25 TCJMF 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 06 Faithful Performance Bond 17 Wine&Art Festival 5020 Community Waik 07 Misc.One-Time Deposit 21 Assessment Dist. Deposit 60 Planning Fee Deposit 08 Multi Species Mitigation 23 Median Const/Landscape IS THE DEPOSIT REFUNDABLE? YES NO CO DITIONS TO BE BEFORE REFUNDING DEPOSTT? � �� AMOUNT REFUNDABLE DATE TO BE REFU ED MAIL REFUND TO: ," ,, r . — �e a- '�' C' � ! FINANCE DEPARTMENT USE ONLY — — — DATE REFUIVDED CHECK NO. AMOUNT NOTE:ATTACH TAPE SHOWING CALCLILATLON OF INTEREST EARIVED,ff ANY. Yrpe: AL Drawe�1 p�r� 9/2i113 M R+�e1Q� �� e� �Rt1ST �P�IS9 :3�133.BB 3b155� CK��r. 1911 s34899.BB Trans date: 9/27/13 ii�p: 16:16:5g WHT-PAYOR GRN-TRUSTACCT CAN-ACCOUN77VG PINK-NUM.CONTROL G.ROD ISSUINC DEPT r ' � � � � � � � � � � � ; � 73-5 t o FKr:u WnK�Nc Uicrvr•. P��.M Di:sitx�r,Cni.ir��eNin qaz6o-Z57K �'i Te�: 760 346—o6i i infi�e tilyolpalmdc��•rt ur�; __._ _. __. f'f7fp`,Ja,frr�f fF_/!..�, .r^�/? October 31, 2013 EI Paseo Cotiection North 73-069 EI Paseo, Suite 200 � Palm Desert, California 92260 Dear Sir or Madam: Subject: Improvement Aareement and Recorded Custom Sidewalk and/or Drivewav Indemnification and Hold Harmless Aareement for the Propertv Located at 73-1fl0 EI Paseo. Patm Desert Enclosed are fulty executed copies of the Improvement Agreement and recorded Custom Sidewalk and/or Driveway Indemnification and Hold Harmless Agreement far your records. if you have any questions or require additional infarmation, please do not hesitate to contact us. Sincerely, �- �� -F- RACHELLE D. KLASSEN, MMC CITY CLERK RDK:mgs Enclosure (as noted) ,,/ cc�enc: Mark Greenwood, P.E., Director of Public Works A t Y YnM:IdM�It+<Ipt��H� . , t ' ' IMPROVEMENT AGREEMENT DATE OF AGREEMENT: S�tember 26.2013. NAME OF DEVELOPER: EI Pasea CoItection North, a Califarnia Limited Partnership (re!'crrcd tc�as "DEVELOPER"). NAME OF DEVELOPMENT: El Paseo Collection North (ref'erred to as"DEVELOPMENT"). DEVELOI'MENT RESOLUTION OF APPROVAL NO.: Resolution N/A (refierred to as"Resotution of Approval") IMPROVCMENT PLANS NO.: �,7 - I�D � {reterred ta as"Improvement Ptans"). ESTIMATED T�TAL COST OF IMPROVEMENTS: 21 422.00 SURETY: C��sh LETTER Ol�CREDtT/BOND NOS.: N/A This Agrecmcnt is made and cntered into by and between the City of Palm Desert,a municipal carporution ot'thc Stfitc of CaEifornia, hereinafter referred to as"CITY", and the DEVELOPER. �� , �,ar�a� �r�� - C�� :�"' ( C`��.��.� `��- �C'� 99499.(19999�5761►1q11,1 . . . , � ' RECITALS A. DEVELOPER has presented to CITY for approval a Precise Grading Plan pursuant to prnvisions of the CITY's ardinances and regulations relating to development approval. B. A Precise Grading Plan has been approved, subject to the requirements and conditions contained in the Resolution of Approval.The Resolution of Approval is on file in the�ffice of the Director of Community Development and incorporated inta this Agreement hy reference. C. ln consideration of the approval of a Precise Grading Plan 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 CITY in connection with the proposed DEVELOPMENT. DEVELOPER has secured this Agreement by improvement security required by the City and approved by the City Attorney. D. Complete Improvement Plans for the construction, installation, and completion of the improvements have been prepared by DEVELOPER and approv� by the City Engineer. The Improvement Plans numbered as referenced previously in this Agreement are on file in the Oflice of the City Engineer and are incorporated into this Agreement by this reference. All references in this Agreernent to the Improvement Plans 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 connecrion with the improvements according to the Improvement 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 on fi1e in the Office of the City Engineer and is incorporated into this agreement by reference. 99999.09999\5�60340.t � � f i F. CITY has adopted standards for the construction and installation of improvements within the CITY. The Improvement Ptans have been prepared in conformance with CITY standards in effect on the date of the Resolurion of Approval. NOW,THEREFORE,in consideration ofthe approval ofthe DEVELOPMENT, DEVELOPER and CITY agree as follows: (l) DEVELOPER's Obligafion 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 rec}uired by the Resolution of Approval in conformance with approved Improvement Plans within one year from date of execurion of this Agreement. (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 CITY, and dedicate all rights of- way, easements and other interests in real property for construction and installation of the public improvements, free and clear of all liens and encumbrances. The DEVELOPER's obligations with regard to acquisition by CITY of off-site rights- of-way, easennents and other interests in real property shall be subject to a separate agreement between DEVELOPER and CITY. 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. �.o�9�s�eo3oo.� 3 . . , ' (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 Secrion (1)(b) above, unless a time extension is grantai by the CITY as authorized in Section(21). (2) Acquisition and Dedication of Easements ar Rishts-of-Way. If any of the public improvement and land use development work contemplated by this Agreement is to be constructed or instatled on land not owned by CITY or DEVELOPER, no construction or instalIation shall be comrnenced before: (a) The offer of dedication to CITY of appropriate rights-of-way, easements or other interests in real property, and appropriate autharization from the property owner to allow construction or installation of the improvements or work, or (b} The dedicatian 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 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 Sectian(2)shall be constrved as authorizing or granting an extension of time to DEVELOPER. (3) Securi . DEVELOPER shall at all rimes guarantee DEVELOPER's performance by furnishing to CITY, and maintaining, good and sufficient secwity as required on forms approved by CITY for the purposes and in the amounts as foliows: 99999.09999�5'I60340.1 4 (a) to assure faithful performance of ttus Agreement in regard to said improvements in an amount of 100% of the estimated cost of the improvements; and (b) to secure payment to any contractor, subcontractor, persons renting equipment, or furnishing labor and materials for the improvements required to be constructed and 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. T'he terms of the security documents referenced on page I of this Agreement are incorporated into this Agreement by this reference. If any security is replaced by another approved security,the reptacement shall: 1)comply with a11 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. (4) Alterations 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 npon by CITY and DEVELOPER, 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, DEVELOPER shall provide improvement security for faithful performance as required by Secdon (3) of this Ageement for one hundred 99999.(19999ti7G0340.1 � . . * perr,ent(100%)of the total estimated cost of th�improvements as changed, aitered, or amended, minus any completed partial releases allowed by Section (6) of this Agreement. (b) The DEVELOPER shall construct the improvements in accordance with ClTY standards in effect at the time of adoption of the Resolution of Approval. CITY reserves the right to raodify the standards applicable to the DEVELOPMENT 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 DEVELOPER requests and is granted an extension of rime for completion of the improvements, CITY may apply the standards in effect at the time of the extension. (5} Inspecrion. DEVELOPER shall at all times maintain proper facilities and safe access for inspection of the public improvements by CITY inspectors and to the shops wherein any work is in preparation. Upon completion of the work, DEVELOPER may request a final inspection by the City Engineer, or the City Engineer's authorized representaNve. If the City Engineer, or the designated representative, determines that the work has been corapleted in accordance with this Agrcement,then the City Engineer shall certify the completion of the public improvements to the City Council.No improvements shall be finally accepted unless all aspeets of the work have been inspected and completed in accordance with the Improvement Plans.When applicable law requires an inspection to be made by City at a particular stage of the work of constructing and installing such iraprovements, C1TY shat!be given timely notice of DEVELOPER's readiness for such inspection and DEVELOPER shalt not proceed with additional work until the inspection has been made and the work approved. DEVELOPER shall bear aIl costs of iaspection and certificadon. No improvements shall be deemed completed until accepted pursuant ta Secrion(16)herein. �999.0999915760340.1 6 (G) 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 shalt be released upon the finat completion and acceptance 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 performanee of improvement wark as the improvement progresses upon application thereof by the DEVELOPER; provided, hawever, that no such release shatl 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%) of the total improvement security given for faithful performance unril final completion and acceptance of the improvement work. In no event shat} the City Engineer authorize a release of the improvement security which would reduce such security to an amount below that required to guarantee the completion of the improvement work and any other obligation imposed by this A$reement. (c) Security given to se�ure payment to the contractor,his or her subcontractors and to persons fumishing labor,materials or equipment shall,at six(6)months after completion and acceptance of the wark, be reduced to an aznount equal 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 CITY, plus an amount reasonably determined by the City Engineer to be r�uired to assure the performance of any other obligations secured by the Security. The balance of the security shall be released upon the settlement of all claims and obligations for which the security was given. v�.a�ms�eo3ao.� 7 (d) CITY may retain from any security released, an amount sufficient to cover costs and reasonable expenses and fees,inctuding reasonable attorneys' fees. (7) lniury to Public Impmvements Public Prop_ertv or Public Utilities Facilities. DEVELOPER shall replace 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 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 corporarion 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 construction and installation of the improvements, give all necessary notices and pay all fees and taxes required by law. (9) Defautt of DEVELOPER. (a) Default af DEVELOPER shall inciude,but not be limited to, (1) DEVELOPER's failure to timely commence construction of this Agreement; (2} DEVELOPER's failure to timely complete construction of the improvements; (3) DEVEL�PER's failure to timely cure any defect in the improvements; (4) DEVELOPER's failure to perform substantial construcrion work for a period of twenty(20)calendar days after commencement of the work; �.t�9ms�eo3no.► 8 (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, ar any conveyance in lieu or in avoidance of foreclosure; or (7) DEVELOPER's faiinre 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 uncler 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 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 specifically rec;ognized that the estimated costs and security amounts may not reflect the actual cost of construction or installarion of the improvements and, therefore, CITY's damages for DEVELOPER's default shall be measured by the cost of completing the required improveinents. The sums provided by the improvenneut security may be useti by C1TY for the completion of the public improvements in accordance with the improvement plans and specifications contained herein. (c) In the event of DEVELOPER's default under this Agreement, DEVELOPER authorizes CITY to perform such obligation twenty (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 C1TY. CITY may take �e.o��s��►�.i 9 over the work and prosecute the sarne to completion, by contract or by any other rnethod 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 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 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 violarion against all proposed 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 to CITY. DEVELOPER agrees 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 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,engineers, attorneys,other professionals,and court costs. (fl The failure of CI1'Y to take an enforcement action with respect to a default, or to declare a breach,shall not be construed as a waiver of that default or breach ar any subsequent default or breach of DEVELOPER. (10) DEVELOPER Not A,�eLnt of CITY. Neither DEVELOPER nor any of DEVELOPER's agents,contractors or subcontractors are or sha11 be considered to be agents of n99�.c�s�so3ao.i 10 C1TY in connection with the performance of DEVELOPER'S obligations under this Agreement. (11) Injury to Work. Until such time as the improvements are accepted by CITY, DEVELOPER shall be responsihle for and bear the risk of loss to any of the improvements constructed or installed. Until such time as all improvements required by this Agreement are fully completed and accepted by CITY, DEVELOPER will be responsible for the care, maintenance of, and any damage to such improvements. CITY shall not, nor shall any officer or ernployee 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 responsibiliry of and are hereby assumed by DEVELOPER. (12) Warrantv. DEVELOPER shall guarantee or warranty the work done pursuant to this Agreement far a periad of one year after final format acceptance of the impravements 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, furnished, installed, or constructed by DEVELOPER fails to fulfill any of the requirements of this Agreement or the improvement plans and specifications referred to herein, DEVELOPER shall without delay and without any cost to CITY, repair or replace or reconstruct any defective or otheiwise unsatisfactory part or parts of the work or structure. Should DEVELOPER fail to act promptly or in accordance with this requirement, DEVELOPER hereby authorizes CiTY, at CITY's option, to perform the work twenty (20) days after mailing written notice of default to DEWELOPER and to DEVELOPER's surety, and agrees to pay the cost of such work by CITY. Should CITY determine that an urgency requires repairs or replacements to be made before DEVELOPER can be notified, CITY may, 99999_I)9499�5760340.1 1 1 in its sole discretion,make the necessary repairs or replacement or perform the necessary work and DEVELOPER shatl pay to CITY the cost of such repairs. (l3) Environmental Wamantv. 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 environmentat law and neither the property to be dedicated nor the DEVELOPER is subject to any exisdng, 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, an,under, or about the property to be dedicat�, any hazardous substance except in compliance with aIl 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 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 presence of any hazardous substance on the property to be dedicated or the migration thereof fram or to any other property adjacent to,or in the vicinity of,the property to be dedicated; (b) Any claims made or threatened by any third party against CITY or the property to be dedicated relating to any loss or injury resulting from any hazardous substance;and, 99999.09999�5760340.1 12 (c) DEVELOPER's discovery of any occurrence or condition on any property adjaining in the vicinity of the property ta be dedicated that could cause the pmperty 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 Apxeements. Nothing contained in this Agreement shall preclude CITY from expending monies pursuant to agreements concurrently 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 ather improvements, pursuant to the provisions of the CITY ordinances providing therefore,nor shall anything in this Agreement cornmit CITY to any such apportionment. (15} DEVELOPER'S Obligation to Warn Public During Construction. Unril formal final acceptance of the improvements, DEVELOPER shall give good and adequate warning to the public of each and every dangerous condition existent in said improvements, and will take all reasonable acrions to protect the public from such dangeraus condition. (16) Vestin� of Ownerstn:p. Upon formal final acceptance of the work by CITY and recordation of the Resolution of Acceptance of Public Improvements, ownership of the improvements constructed pwsuant to this Agreement shall vest in CITY. (17) Final Acceptance of Work. Acceptance of the work on behalf of CI1'Y 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 finalty completed, as provided in Section (6). Such acceptance shall not constitute a waiver of defects by CITY. �v.on��s�eoaao.i 13 (I8) lndemnity/Hold Harmless. C1TY 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 Agreement. DEVELOPER further agrees to protect, defend, indemnify and hold harmless CITY,its officials,boards and commissions, and members thereof,ag�nts and employees from any and all claims, demands, causes of action, tiability 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 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 aIl 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 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 construction of public drainage systems, streets and other public improvements. Acceptance by CITY of the improvements shall not constitute an assumption by CTTY of any responsibility for any damage or talting covered by this Section. CITY shall not be responsible for the design or construction of the property to be dedicated or the improvements pursuant to the approved improvement plans or map,regardless of any negligent action or inaction taken by CITY in approving the plans or map, 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 objecdon indicated that the n�.o��s�eo3ao.i 14 particular improvement 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 shalt not be responsible for routine maintenance. Provisions of this Section shall remain in full force and effect for ten(10)years following the acceptance by CITY of the improvements. It is the intent of this Secrion that DEVELOPER shall be responsible for ail 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,nanfeasance,misfeasance or malfeasance in approving,reviewing,checking,or inspecting any work or construcrion. The improvement security sha2l not be required to cover the provisions of this Sectian. DEVELOPER shall reimburse CITY for all costs and expenses(including but not limited to€ees and chazges of azchitects,engineers, attorneys,and other professionals,and court costs) incurred by CITY in enforcing the provisions of this Section. (19) Personal Nature of DEVELOPER'S Obli a� tions• 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 #he property within the DEVELOPMENT subject to this Agreement, and DEVELOPER shall not be entitled to assiga its obligations nnder this Agreement to any transferee of all or any part of the property within the DEVELOPMENT or to any other third party without the express written consent of CITY. (2Q) Sale or Disposition 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 request a release or reduction of the securities required by this Agreement. Nothing in the novation sha11 relieve the 99994.09994�5760340.1 ]Jr DEVELOPER of the obligations under Section (17) for the work or improvement done by DEVEL4PER. (21) Time of the Essence. Time is of the essence in the perFormance of this Agreement. (22) Time for Commencement of Work• Time Extensions. DEVELOPER shall commence substantial construction of the improvements 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 construction or completion of the improvements hereunder may be extended for a period or periods not exceeding a total of two (2) additional years. The extension shall be executed in writing by the City Engineer. Any such extension may be granted without notice to DEVELOPER's surety and shali not affect the validity of this Agreement or release the surety or sureties on any security given for this Agreenlent. The City Engineer shall be the sole and final judge as to whether or not good cause has been shown to entitle DEVELOPER to an extension. Delay, other than deiay 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 condirion of such extension, the City Engineer may require DEVELOPER 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 deternuned by the City Engineer. (23) Na�ting of Ri ng„_ts. Performance by DEVELOFER of this Agreement shall not be construed to vest DEVELOPER's rights with respect to any change in any zoning or building law or ordinance. 99999.Q9994�5760340.1 16 (24) Notices. All notices required or provided for under this Agreement shall be in wriring and delivered in person or sent by mail, postage prepaid and addressed as provided in this Seetion. Notice shall be effective on the date it is delivered in person, or,if raailed,on the date of deposit in the United States mail.Notices shall be addressed as follows unless a written change of address is fiied with the City: Notice to CITY: City of Palm Desert 73-510 Fred Waring Drive Palm Desert,California 92260 Attn: Public Works Director Natice to DEVELOPER: El Paseo Collection North, a California Limited Partnership 73-061 EI Paseo Suite 200 Palm Desert,CA 42260 Notice to SURETY: N/A (25) Compliance With Laws. DEVELOPER, its agents, employees, contractors and subcontractors shail comply with all federat, state and locat laws in the performance of the improvements and land development work required by this Agreement. (26) Severabilitv. The provisions of this Agreement are severable. If any portion of this Agreement is held invalid by a court of competent jurisdictian,the remainder of the agreement shall remain in fuit force and effect unless amended or modified by the mutual consent of the parties. 99999.07)99,5760340.1 1'� . ' • . (27) 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. (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 entitled to Iitig�tian costs and reasonable attorneys' fees. (29) Incorporation of Recitals. The recitals to this Agreement are hereby incorparated into in the terms of this Agreement. (30) 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 parries. (31) lntemretation. This Agreement shall be interpreted in accordance with the laws of the State of California. (32) Jurisdiction. Jurisdiction of all disputes over the terms of this Agreement shall be in the County of Riverside, State of California. �.o��s�6o3ao.i 18 � , . IN WITNESS WHEREOF,this Agreement is executed by the parties as of the date hereinabove first written;by CITY,by and through its Mayor. EL PASEO COLLECTION NORTH, CITy OF PALM DESERT a California Limited Partnership r By: Chartwell Family Collection North,LLC, BY� a Califo ia limited ' bi ' om any MA R By: Fred A. rn, anager ATTEST C CL RK � APPROVED AS TO FQRM: � —� CITY ATT Y v�9.o�sms��o3ao.i 19 . . � STATE OF CALIFORNIA ) COUNTY OF RNERSIDE } On �""�b��2 Z�o,�$}0 before me,TA'ER�C��F �'rtn �1'�'�"V�s r ,Notary Public,personally appeared �d I�. �K.�'1 ,who proved to me on the basis of sarisfactory evidence to be the person(s)whose name(s)is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/herltheir authorized capacity(ies),and that by his/her/their signature(s)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 foregaing paragraph is true and correct. WITNESS m hand and official seal. PATRICIA ANN ALMOUtS7 y Commfaalon A�1967471 Nol�ry PubUc-C�Iifornl� � Los Anpelee County . � Comm. roa Feb 22,2016 � Signature: (seal) �.o��s�so3ao.i , CALIFORNIA ALL-PURPOSE ACKNOWLEDGINENT �r�r.�r.�:�,c�x�.�cr.e�c.x:a.r�.r.N.�r:�.�:r.e r.M.�:c.�c.�:c.�r.m.e:�.�r.c�c�.,�c.�x.�:��.�:r.z:�,�r.�:�:r.r�.�c..r:c�.rr.a:crr,�.�r.r�c�,.r�.�c..r.r.e�r.�.�..rr�s,� fi ` fi State of Califomia � fiCounty of Riverside � � � � �n Oct�ber 8, 2013 �tore me, M. G. Sanchez, Notary Publ.ic � fi °n1a r+ere u�en wme�a�.a r�a anc�� personaliy appeared Jan C. Aarnik ----------------------------------- � `� Meme(s)ol r(s) � � fiwho proved to me on the basis of satisfactory �� fi evidence ta be the person@s) whose name�s) is/aa.�x � fi subscribed to me w�thin instrument and acknowledgeci � �fi to me that ima/she/lhey executed the same in � 6ri�/herdl�c authorized capaciiy(ies�, and �at by � � i�s/her� signature(s� on the instrument the � fi person(a�, or the entity upon behalf of which the t� � M.G.SANCNEZ person(a) acted,executed the instrument. � � Commissloa#190B339 t� < s Notary Pubitc-Caiifornia � I certify under PENALTY OF PERJURY under the � �fi z � Riverside County Iaws of the State of Califomia that the foregoing M Camm.Expires Oct 2B,2ot 4+ paragraph is true and correct. � � WITNESS my hand d vificlal seal. � � ' � fi Signature: .�t ---- �a rbw„s��aove ��,�, � OPT/OIVAL fi rn�n a�inro„►�ao�nerow r��r��a n�.�w,rr m$y��r�t�ro ►��,�r,�or,r�e r � and coWd prevenr traudureor,grnova�and mattad►menr of a�ls enother � Descriptton of AttaChed DOCument Improvement Agrp _nt �fi Titte or 1'ype of Documenr EI PasPo Collpction North G-1301 Document Date: Septsmber 26, 2013 Number of Pages: � Signe�(s)Other Than Named Above: �� Cepeatty(les)Ciaimed by Signer(s) Signers Name: Jan C. Harnik Signers Name: � �� n corporate o�icer—r�ne(s): ❑corporate r—rme(s): (-7 Indfvidual ❑lndividual �� [� Pariner—L)Llmited U Generai rop or tnu►r,�here ❑Partner—O Lim O Generai rop of munb nere ❑ Attomey in Fact �]Attomey in Fact � � i'3 Trustee � f�Trustee t,�' �� f,� Guardien or Conservator \ C�Gua�dian or Conseroator � �i Other. or �''.. J Oil�r. � `,� � Signer Is Representlng: Signer ts Representing: � Citv of Pa1m DeserC � `xas�c.�s�c.^�.:c.�c.^s,�c.Acac>�a�s..�s;c.��+�;tx.��„c.ws�x.�wc��u�s�c.^�vs+:eris��:�c.^s��s��wcas:�c�ew^c:c��n:�;urw�:x�,�c,^r�c,^s�;�rk.^t�s��t,�s;�:^L c.�;�ue.^�arY? o zooe N�r�auy a�•a.non.�oay.oro•�-eoo-�rarnav��-eoo.a� a.m�o� � '� 5237 � CITY OF PALM DESERT TREASURER'S RECEIPT FOR TRUST DEPOSIT nA� a�touNr 1 �Z� JS,�� a DEPOSFT 'S NAME � REASON FOR DEPC�SIT � i. ' Qp �' L, � Gl- G/�' RECEIVED BY �� ACCOUNT NUMBER(drele one): 610-0000-22B-X�(.pp �l Deposit in Lieu of Bond 11 Landscape&I,ighting 24 Art Fssay Contest l 3 Rent Review Commission 25 TUMF 03 Monterey !70 14 Candidates Deposit 34 Employee Donadons U4 Grading Bond 15 Mi6gation Fringe Lizard 39 PM10 Deposit 05 Demolition Bond !6 Special Events 49 Athena Award 06 Faithfui Performance Bond l7 Wine&Art Festival SOlO Community Walk U7 Misc.One-�me Deposit 2l Assessment Dist. Deposit 6p planning Fee Deposit 08 Multi Species Mitigation 23 Median ConstlLandscape LS THE DEPOSTT REFUNDABL.E7 YES ATO CO TTIONS TO BE BEFpRE REgpATpING �OS� � � � AMOUNT REFUNDABLE DATE TO BE gp MAIL REF[1ND Tp; . r r � � FiNANCE DEPABTMF.NT USE ONLY� � .� _... r — — " " " — DATE REF[JNDED�� CHEQC NO. AMOUNT NOTE:ATfqCIi TAPE SliO W1NG CALCU'LATIpN OF IIVTEREST EARNEp�ff ANY. T�i pL 1r�er��f �i�gl�7/I3 N ��'� � i.N ��'N 3615� 'tT�s a�*� l�l� ��.li Gt� tta�s dates g/�7/13 1i�ee lbsib:59 WHT PAYOR GRN�TiNATAtYT CAN-ACC�(WNA!1p PINK NUM C�OM'RiIL G.Rt� �SSIlIN(i DEPf 3 RECORDING REQUESTED BY, AND WHEN RECORDED, MAIL TO: DOC # 2�13-0492687 10/15/2013 @3:11P Fee:NC Page 1 of 6 �.��Ci�@I'�(�S��C@ Recorded in Offlcial Records County of Riverside City Of Paln'1 Desert Larry a, w�ra 73-510 Fred Waring Drive ��r, Caunty Clerk a Reeorder Paim Desert� CA 92260-2578 I II��I��I��I"��I'�I��IIII�I��III��I! 1 I Il 1 il��I�II FOR THE BENEFIT OF THE s � U PAGE SIZE DA M�sc LONG RFD co�,r CITY OF PALM DESERT - NO FEE � M A L 465 426 PCOR NCOR SMF NCH 6103 OF THE GOVT. CODE D3,J f: crr uHi � � Custom Sidewalk and/or Driveway 030 Indemnification and Hold Harmless Agreement Between City of Palm Desert a Municipal Carporation and EI Paseo Collection North A Califomia Limited Partnership Legal Description of Property City of Palm Desert,County of Riverside,State of California, krrown as Lot 22 of Block"F°of the Palm Desert,as shown in the Map Book 21 Pa�ge 50 in the t)ffice of the County Recorder for the County of Riverside,California. The street address of the parc�l is 73-100 EI Paseo D�ive,Palin Desert,California. Dated: September 26, 2013 (Title of Document) -� ; . ` { .. � p 'X= , � . � . ' CUSTOM SiDEWALK AND/OR DRIVEWAY INDEMNIFICATION AND HOLD HARMLESS AGREEMENT BETWEEN PROPERTY OWNER AND THE ClTY OF PALM DESERT This Agreement is entered into this Z(i day of September, 20I 3 by anci between the CITY OF PALM DESERT (hereinafter referred to as "CITY") and EL PASEU COLLECTION NORTH, a California iimited partnership (hereinafter referred to as"OWNER"), and is made with respect to the following: A. OWNER is the legal owner of the property located in the City of Palm Desert, County of Riverside, State of California, known as Lot 22 in Block"F"of Palm Desert in the City of Palm Deseirt,as per Map recorded in Book 21 Page 50 of Maps,in the Office of the County Recorder for the County of Riverside, California. The street address of the parcel is 73-I00 El Paseo, Palm Desert,CA. B. OWNER has heretofore appiied for a building pernut and/or encroachment permit,in order to build a custom sidewatk("custom"defined as different in color, composition or different in any ather way from the smooth gray concrete sidewalk normally pennitted by the City). C. Prior to the issuance of the building permit attd encroachment pernut, or any other authorizing document,the OWNER agrees with the following: 1. The OWNER will provide to City a statement from the manufacturer that the material of certain tree grates, walls, handrails, steps, tile, brick, stone or any other non- standard sidewalk material proposed to be installed as the sidewalk in and on the public right-of- way located at the premises described in Paragraph "A" above, is of a non-skp nature (this requirement does not apply to stamped or cotored concrete); 2. The OWNER understands and aclmowledges that by constructing a custom sidewalk the OWNER agrees to be responsible for regularly inspecting and assessing the condition of the custom sidewalk and/or driveway,properly maintaining and repairing the same,and keeping it in a safe condition as long as such custom sidewalk is in place; 3. The OWNER has received approval for all aspects of the sidewallc from all appropriate departments and agencies regarding the design, placement, ADA accessibility, and materials used to construct the custom sidewaIk aad/or driveway; 4. The OWNER understands that any claims arising from the placement, installation, and maintenance of said custom sidewalk will be tendered to the OWNER's insurance, and that the OWNER must provide proof of insurance coverage which will be provided with this Agreement prior to the execurion of the same and issuance of any permits by the CTTY,naming the CITY as an addirional insured. D. In consideration of the aforementioned recitals and this indemnification and hoid harmless agreement executed by the OWNER, the CITY proposes to issue the permits required for the installation of that custom sidewalk as set forth above. � . � . NOW,THEREFORE,the CITY and OWNER agree as follows: 1. AGREEMENT. CITY, throu�t► its appropriate departments and agencies, shall issue ta the OWNER a building permit, encroachment permit or other appropriate clocument for the installation of certain custom sidewalk,driveway,tree grates,walls,handrails,steps, stamped and/or colored concrete in the sidewalk located at tfie premises described in Paragraph "A" above, as the same has been approved by the appropriate cornmittee or department of the Ciry. 2. HOLD HARMLESS. So long as the custom sidewalk remains in place, OWNER agrees to indemnify and hold harmless the CITY, its officers, agents, employees and representatives, against any and all losses,actions,proceedings,or claims inctuding attarneys' fees and all other costs of defense brought or made against CITY, its officers, agents, employees and representatives, in connection with or arising frorn the installation,existence,or maintenance of the custom sidewalk or as a result of any accident that may occur upon said custom sidewalk, driveway, tree grates, walls, handrails,steps,stamped and/or colored concrete in the sidewalk. OWNER's obligations under this Paragraph 2 are covenants running with this named Parcel and shall be binding upon OWNER's successors-in-interest,heirs and assigns. 3. INSURP►NCE. OWNER shall obtain and,at no cost to the C1TY,maintain a liability insurance policy in the amount of One Million Dollars ($1,000,0OO.OQ), naming the CITY as the additional insured. Such insurance shall be required for the purpose of insuring the custom sidewalk const�vcted upon the public right-of-way by the OWNER. OWNER shall provide CITY with proof of such insurance before permits or notices can be issued. 4. INTERPRETATION AND ENFORCEMENT. T`his Agreement shall be binding upon and inure to the benefit of the heirs, exexutors, administrators, successors, assigns, officers, agents, employees, attomeys and representatives of the respective parties hereto. In the event that any provision of this Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement. In the event of any coniroversy,claim or dispute between the parties hereto, arising out of or relating to this Agreement, the prevailing party shal! be entitled to recover from the other party reasonable expenses, attomeys' fees ar�d costs. This Agreement is made in and shalt be governed under the laws of the State of California. 5. This Agreement shall be notarized and the same record�in the Couury of Riverside, State of Califomia. 6. All recitals hereinabove set forth shall be and hereby incorporated as part of this Agreement,and shall be adhered to by the OWNER. 7. A person who is at least eighteen(18)years ef age must sign this Agreement. The person who signs this agreement on behalf of a government agency,corparation,non-profit or any other organization must be lega�ly authorized to bind the arganization in a contractual agreement. ,. • � IN WITNESS WHEREOF,the parties have executed this Agreement on the date first written above. CITY OF PALM DESERT Approv -as t form: $y; Jan C. Harnik � ed N � �l ,�' ' . ' ,cr David . Erwi ature City Attorney Att el e D.Klassen,City erk City of Palm Desert OWNER EL PASED COLLECTION NORTH, A California limited partnership By: Chartwell Family Collection North,LLC, a Califo 'a mited liabil' company By: - A.Fem, anager y , � . . State of Califomia County of Riverside On �"ernbe�2 , 20 t 3 , before me, �� r� A n A�C�v►ST , a Notary Pubtic, personally appeared ct,.. l4 F"' r� , who proved to me on the basis of sat�`sfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s} 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. PATRICIA IINN ALM�OUIS WITNESS my hand and official seal. No►�P�ai��c��o�i; los Mpales County Comm.E kes Feb 22,2016 G��1�c(.�� lH` U,tr�� Signature (seal) - OPT/ONAL - DESCRIPTION OF ATTACHED DOCUMENT: (TITLE OR TYPE OF DOCUMENT) (NUMBER OF PAGES) (DATE OF DOCUMENT) (SIGNER(S) OTHER THAN NAMED ABOVE) w�u n..�.rw.rs� (OTHER INFORMATION) i . , r CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ��r.,err,.�ar:c�a�cFr,r�r.r.�.,t�c�„r:r.r:r.e�:caRcsr.r..�x:c,t�.r.tse�,r;e.,erycr.cr.i.r.z:,e.,c.�r.r:c.r:err.c.e�...�.t�yc r„t�c�.,�»e.c:a�:c�.r.r„cr.e�„czc.e:c.c:c,r,�c.r.c,r.ac,c.x:rxs„� � fi State of Cafifomia t� fi t� fi County of R�verside �i � M. G. Sanchez, Natax Public � '��' OnSP�tpmbPr 8, 2013before me, �' � � � Onto Hero HaM Nma end TMIe ol the 011ker fi Jan C. Barnik � personaily appeared ---------""'----"'�--~--`-�-�----- �',,cc Neme(s)ol Sl�er(s) j� ? "i �: , ��I � "' �� who praved to me on the basis of satisfactory � evidence to be the person(�) whose name(s) ts/aQsx subscribed to the within instrument and acknowledged � fi to me that i4eishe/� executed the same in � fi t�s/her�hairc autho�ized capaaiy(ieek, and that by � � lus/henkla�c signature(a) on the instrument the fi person(s�, or the entity upon behalf of which the fi M.G.SANCNEt °� Commission�1906339 P��an�a)acted, executed the instrument. � fi Z -o Notary Public-Ca11tornia � � �� under PENALTY OF PERJURY under the � fi Riverside County fY � 'fi My Comm.Expires Oct 29,2ot4 laws of the State of Califomia that the foregoing � � paragraph is true and correct. fi � WITNESS my hand and�!seal. � :.., , , �r . � Signature: , � � r�s n�om�y se�ncove a►�r� � � OPTIONAL Tt►ough the inlormali�n below!s rrot required by law,it may prove valuab�io r�elying oni(i►e ent � � and coWd prevent fraudulent remova/and reet►achment�t!►�s thnn anotirer documev►t � DBSCri on of Attached Document Custom gidpwRlk and�/or DrivPwa� Ir.demnific�tio p� and Ho1d Harmlpss AgrPement + � Title or Type of Documerrt: �1 Pasea Collection 13orth 73-I00 El Paseo, Palm DPSPrt '�' Document Date: SPPtPmbpr :'.6, 2013 Number af Pages: � Signer(s)Other Than Named Above: � Cap�city(ies)Claimed by Signer(s) � Signer's Name: Jan C. Harnik Signers IVame: � Cl Corporate Officer—7iHe(s): ❑Corparate'Off'�cer—Title(s): � U Ind'rvidual L7lndividual � C� PaMer—U limited C1 General Top of thtanb here [:7 Partner—O U ed D General -roP or�n,�nare � � Attomey in Fact O Attomey In Fact � C7 Trustee i�Trustee � L7 Guardian or Conservator L7 Guardian or Conservator � � Other. Mayor L7 Other: �� Signer Is Representlng: �� Signer Is Represenbng: Citv of Palm Desert � o�ooe N,rb�wae�y n.eodsuo„•Ne�wayo�•�-eoo�us aor,wv��-eaae�e-s�n imm�seo� � EL PASEO COLLECTION NORTH - 73-100 EL PASEO ----- -- � _�_______�____T_ _� _ ___� �_'_��____�___� �__. �Ai-M-DESER�-DRIi/E-N ___.__._ , � _. _ .. _. _. ..._. , __ tHGFIW�4Y�111--- . _ _ _..__._.._._�___�. � t11GFIWlW-1'11 „.. . � .-�,at-nn-t�ESErt�-tiRwe-s- , __ _ ti�, .� A� �� A P*'�` Q , _ �3y' _ __ ft—PASEO _ _ _ftPA�EO R � � �W i � � T� �� i � � I � �O R � M ? � �iiMBt-EWEEtt-L-lWE . �f� ; �(�I s,'P ,� A4 �-�. �s� ��. o ,. �� _....� � - - \�.� ___..__� ''� C`''� t��.�� __I Legend O 1: 1,846 — Clrculation Network Streets L� City Boundary ❑ Parcels(112014) a City Boundary Notes