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Home My WebLink AboutRelease Scrty - The Gardens on El Paseo � ��l CITY OF PALM DESERT ,�� ;� �� PUBLIC WORKS DEPARTMENT STAFF REPORT REQUEST: RELEASE SECURITY FOR THE GARDENS ON EL PASEO SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works APPLICANT: Darryl Herring The Gardens on EI Paseo, LLC 200 East Long Lake Road, Ste. 300 Bloomfield Hills, MI 48304 Comerica Bank 411 West Lafayette (MC 3341) Detroit, MI 48226 LETTERS OF 663697-01 CREDIT NO'S.: 663698-01 DATE: March 13, 2014 CONTENTS: Agreement Letters of Credit Vicinity Map Recommendation By Minute Motion, release security for improvements for the Gardens on EI Paseo. Backqround The subject property is located on the south side of EI Paseo at 73585 EI Paseo between San Pablo Avenue and Larkspur Lane. Letters of credit in the total amount of $94,428 were submitted at the time of permit issuance for landscape and 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. Staff Report Release Security for The Gardens at EI Paseo Page 2 of 2 March 13, 2014 Staff recommends that the City Council authorize the release of the faithful performance and labor and materials letters of credit. Fiscal Analysis There is no fiscal impact associated with this action. Prepared By: De m nt Head � 1�� Christina Canales, Assistant Engineer Mark r enwood, P.E., Directo Public Works .. �� ('�)CI��C�'1t.tAC'!'E� '� Paul S. Gibson, Director of Finance . �_� �„r� �,s�� ✓ _ __ ___ ± � o��: �)__ _ ��d�'�'a:14�i�.i) _f�"I'��li�:}t — - roval: ��t'('"I'ING UATE � ��—�� — � � � �� f�1'f:�;: �e�' � u � �or�;: ��c�e ,� ai�;�r�T: ti� - n M. Wohlmuth, City Manager A[3ST�IN:�.�� vrxiH iEn �Y: Ori;inal on File with City Cierlc's fice � CITY 4F PALM DESERT 73-510 FRED WARING DRIVE � w �� . ; PALM DESERT,CAUFORNIA 92260-2578 � ;G TEL:(760)776�450 FAX:(760)341-7098 TRANSMiTTAL To: Gloria Martinez Date: August 30, 2013 Records Technician From: Christina Canales Assistant Engineer Project Data Case No.: N/A Project Address: The Gardens on EI Paseo Letters of Credit No's:663698-09 & 663697-01 Agreement Owner: Darryl Herring c/o The Gardens on EI Paseo, LLC 200 East Long Lake Road, Suite 304 Bloomfield Hills, Mt 48304 Please execute the attached agreement and hold with the attached letters of credit until their release by Council action. � l_� COMERICA BANR FAX NO: 313 222 9115 911 WEST LAFAYETTE (MC 3391) SWIFT: MNHDD533 DETROIT, MI 48226 UATE: AOGIIST 27, 2013 BENEFICIARY: CITY OF PALM DESERT C/O CITY MANAGER 73510 FRED WARING DRIVE PAI1+J DESERT, CA 92260 APPLICANT: THE GARDENS ON EL PASEO, LLC 200 EAST LONG LAKE RD. SUITE 300 BI.00A�lFIELD HILLS, MI 98304-2329 AMOONT: $62,952.00 WE HEREBY ESTABLISH OUR IRREVOCASLE STANDBY LETTER OF CREDIT NO. 663696-01 IN YOOR FAVOR FOR THE ACCOUNT OF THE GARDEiJS ON EL PASEO� LLC IN THE AMOONT OF USD 62,952.00 (SIXTY T�iO THOOSAND NIi1E HUNDRED FIFTY TWO AND 00/100 II.S. DOLLARS) TO EXPIRE AOGDST 20, 2019 AVAZLABLE BY PAYMENT OF YOIIR DRAFT(S) AT SIGHT ON C�IERICA BANR WHEN ACCOdSPANIED BY TAE FOLLOWING DOCUMENTS: 1. A WRITTEN AND DATED STATEMENT ON THE SENEFICIARY�S LETTERHEAD SIGNED BY THE BENEFICIARY INDICATSNG NAME AND TITLE OF THE SIGNER WITA THE FOLLOWIN6 WORDING: "CITY OF PALM DESERT HEREBY CERTIFIES THAT WE ARE ENTITLED TO DRAW (INSERT AMOUNT) DNDER COMERICA BANR'S STANDBY LETTER OF CREDIT NO. 663698-01 PURSDANT TO THE TERMS At1D CONDITIONS OF THE IMPROVEMENT A6REEHENT, DATED ADGUST 28, 2013 BY AND SETWEEN THE GARDENS ON EL PASEO, LLC AND THE CITY OF PALM DESERT". 2. THE ORIGINAL OF THIS LETTER OF CREDIT AND RNY AMENDME!)TS THERETO. PARTIAL DRAWINGS 14ND MIILTIPLE PRESENTATIONS ARE PERMITTED. ALL DRAFT{5) DRAWN IINDER THIS STANDBY LETTER OF CREDIT MUST SE MARKED "DRAWN UNDER COMERICA BANR'S STANDBY LETTER OF CREDIT NO. 66369B-01.^ IT IS A C�IDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEFIKED ADTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR A PERIOD OF ONE YEAR FROM THE PRESENT OR ANY F(JTf7RE EXpIRATION DATE, DNLESS AT LEAST THIRTY (301 DAYS PRIOR TO THE EXPIRATION DATE WE SfIALL SEND TO Y00 BX OVERNIGHT COURIER OQR WRITTEN NOTICE THAT WE ELECT NOT TO EXTEND THIS CREDIT FOR ANY SIICH ADDITIONAI, pERSOD. SAID NOTIFICATION WII.L BE SENT TO THE ADDRESS INDICATED ASOYE, ONLESS A CHANGE OF ADDRESS IS OTHERWZSE NpTIFIED BY YOII TO IIS IN FTRITING BY RECEIPTED MAIL OR COORIER QQOTTNG ODR LETTER OF CREDIT NO. 663698-01. ANY NOTICE TO OS WZLL BE DEEMED EFFECTIVE ONLY IIPON ACTUAL RECEIPT BY OS AT OUR DESIGNATED OFFICE. IN THE EVENT THIS LETTER OF CREDIT IS NO LONGER REQOIRED, THE ORIGINAL LETTER OF CREDIT AND ALL AMENDMENTS THERETO MOST BE SOBMITTED TO C�RICA BANR TOGETHER WITH A SIGNED LETTER ON THE BENEFICIARY'S LETTERHEAD, ADDRESSED TO COI�RICA BANK, AGREEING TO ITS CANCEI,LATION. EXCEPT SO FAR AS OTHERAIISE EXPRESSLY STATED, T$IS STANDBY LETTER OF CREDIT IS SDBJECT TO THE INTERNATI�IAL STANDBY PRACTICES 1998 (ISP98) OF THE INTERNATIONAL CHAMBER OF CO�RCE PUBLICATION 590 AND ANY SQBSEQIIENT REVISIONS. WE ENGAGE iPITH YOD THAT DOCOI�',NT(S) DRAWN L7NDER AND IN COMPLIANCE WITH THE TERMS OF THIS CREDIT WILL B£ DULY HONORED DPON PRESENTATION TO COMERICA BANK, 411 W. LAFAYETTE (1�3341), DETROIT, MI 46226� ATTENTION: INTERNATIONAL TRADE SEAVICES, ON OR BEFORE THE EXpIRATION DATE OR ANY OMATICALLY EXT D DATE .�.� l � A IZED SI TIIRE/TITLE ,�--� � � �Ci t'L��1��N l 0 N O n N O Oo a V ' ��''� COMERICA BANK FAX NO: 313 222 9115 912 i�IEST LAFAYETTE �MC 3391) SWIFT: MNHDOS33 AETROIT, MI 98226 DATE: AOGOST 27, 2013 SEWEFICIARY: CITY OF PALM DESERT C/O CITY MANAGER 73510 FRED WARING DRIVE PALM DESERT, CA 92260 APPLICANT: THE GARDENS ON EL PASEO, LLC 200 EAST LONG LAKE Rp. SUITE 300 BLOOMFIELD HILLS, MI 98304-2329 AMOi7NT: $32,976.00 WE HEREBY ESTABLZSH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. 663697-02 IN YOUR FAVOR FOR THE ACCODNT OF THE GARI3ENS ON EL PASEO, LLC IN THE AMOIINT OF USD 31,976.Od (THIRTY ONE THOQSAND FOUR H[JNDRED SEVENTY SIX AND 40/100 II.S. DOLF,ARS) TO EXPIRE ADGUST 20, 2019 AVAILASLE BY PAYMENT OF YOUR DRAFT(S) AT SIGHT ON COMERICA BANR WHEN ACCOMPADIIED BY THE £OLLOWING DOCUMENTS: 1. A �IRITTEN AND DATED STATEMENT ON THE BENEE'ICIARY'S LETTERHEAD SIGNED BY THE BENEFICIARY INDICATING NAME AND TITLE OF THE SIGNER WITH THE FOLIAWING WORDING: �CITY OF PALM DESERT HERESY CERTIFZES THAT FiE ARE ENTITLED TO DRAW (INSERT AMOIINT) UNDER COMERICA BANR'S STANDBY LETTER OF CREDIS NO. 663697-01 PORSIIANT TO THE TERMS AND CONDITIONS OF THE IMPROVEMENT AGREEMENT, DATED AUGOST 28, 2013 BY AND BETWEEN THE GARDENS ON EL PASEO, LLC AND THE CITY OF PALM DESERT". 2. THE ORIGINAL OF THIS I,ETTER OF CREDIT ANp ANY AMENpMENTS THERETO. PARTIAL DAAWINGS AND MOLTIPLE PRESENTATIONS AFtE PERMITTEO. ALL DRAFT(S) DRAWN DNDER THIS STANDBY LETTER 0£ CREDIT MU$T BE MARICED "DRAWN t]NDER COSIERICA BANR'S STANDBY LETTER OF CREDIT NO. 663697-01." IT IS A CONDITION OF THIS LETTER OF CREDIT THAT ZT SHALL BE DEEMED AOTOMATICALLY EXTENDED BiITHOOT AMENDMENT FOR A PERIOD OF ONE YEAR FROM THE PRESENT OR ANY FUTORE EXPIRATION DATE, ONLESS AT LEAST THIRTY (30) DAYS PRIOR TO THE EXPIRATION DATE WE SHALL SEND TO YOII BY OVERNIGAT COORIER OUR WRITTEN NOTIC£ TFIAT iiE ELECT NOT TO EXTEND THIS CREDIT FOR ANY SOCH ADDZTIONAL PERIOD. SAID NOTIFICATTON WILL BE SENT TO THE ADDRESS INDZCATED ABOVE� IINI,ESS A CHANGE OF ADDRESS IS OTAERWISE NOTIFIED BY YOQ TO US IN iiRITING BY RECEIPTED MAIL OR COORIER QUOT2NG OUR LETTER OF CREDIT NO. 663697-01. ANY NOTICE TO OS WILL SE DEEr1ED EFFECTIVE ONLY OPON ACTUAL RECEIPT BY US AT OOR DESIGNATED OFFICE. IN THE EVENT THIS LETTER OF CREDIT IS NO LON6ER REQOIRED, THE ORIGINAL LETTER OF CREDIT At3D ALI. AMENDMENTS THERETO M[JST SE SDBMITTED TO COI�RICA SANR TOGETAER WITH A SIGNED LETTER ON THE BENEFICIARY'S LETTERHEAD, ADDRESSED TO C�IERICA BANR, AGREEING TO ITS CANCELLATION. EXCEPT SO FAR AS OTHERWISE EXPRESSLY STATEA, THIS STANDBY LETTER OF CREDIT IS SUBJECT TO TAE INTERNATIONAL STANDBY PRACTICES 1998 (ISP9By OF THE INTERNATZONAL CHAMBER OF COIR�RCE PDBLICATION 590 AND ANY SLIHSEQIJENT REV2SIONS. WE ENGAGE WITA YOD THAT DOCUMENT(S) DRAWN DNDER AND IN COMPLIANCE WITH THE TERMS OF THIS CREDIT WILL BE DULY HONORED QpON PRESEAITATZON TO C�RICA BANR, 911 W. LAFAYETTE (MC3341), DETROIT, MI 48226, ATTENTIOl1: INTERNATIONAL TRADE SERVICES, ON OR BEFORE THE EXPIRATION DATE OR ANY ADTOMATICALLY EXTENDED DATE. �e �� — l `��' � ORI ED SIGNATIIRE/TITLE � V ( �C t'(�E�{ �[� 0 N O n OtlN O a U IMPROVEMENT AGREEMENT DATE OF AGREEMENT: August 28,2013. NAME OF DEVELOPER: The Gardens on El Paseo,LLC (referred to as"DEVELOPER"). NAME OF DEVELOPMENT: Landscape Renovation at The Gardens oa El Paseo Sidewaik Repairs on El Paseo (referred to as"DEVELOPMENT"). DEVELOPMENT RESOLUTION OF APPROVAL NO.: Resolutio�i: N/A (referred to as"Resolution of Approval") IMPROVEMENT PLANS NO.: N/A (referred to as"lmprovement Plans"). ESTIMATED?OTAL COST OF IMPROVEMENTS: $62,952 SURETY: N/A(Letters of Credit) LETTER OF CREDIT��B NOS.: 663b98-01 AND 663697-01 This Agreement is made and entered into by and between the City of Palm Desert, a municipa) corporation of the State of California, hereinafter referred to as"C[TY",and the DEVELOPER. 99999,09999�.5760340.1 RECITALS A. DEVEI.OPER has presented to CITY for approval a Conditional Use PermidPrecise 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 tlie requirements and conditions contained in the Resolution of Approval. 'The Resolution of Approval is on file in the Office of the Director of Community Development and incorporated into this Agreement by reference. C. In consideration of the approval of a Conditional Use PermidPrecise 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 DEVBLOPER's own expense, ail 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 approved by the City Engineer. The Improvement Plans numbered as referenced previously in this Agreement are on file in the Office of the City Engineer and are incorporated into this Agreement by this reference. All references in this Agreement to the 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 connection 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 99�N)9.09999�5760340.1 Page 1 of this Agreement.The basis for the estimate is on file in tlie Office of the City Engineer and is incorporated into this agreement by reference. F. CITY has adopted standards for the construction and installation of improvements within the CITY. The Improvement Plans have been prepared in conformance with CITY standards in effect on the date of the Resolution of Approval. NOW,THEREFORE, in consideration af the approval of the DEVELOPMENT, DEVE:,OPER 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) Fumish the necessary materials for completion of the public improvements in conformity with the lmprovement Plans. (d) Acquire, or pay the cost of acquisirion by C1TY, and dedicate all rights of-way, easements and other interests in real property for construction and installation of the public improveinents, free and clear of all liens and encumbrances, but subject to those existing on the record. 7'he 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 between DEVELOPER and CITY. 99999.Q99991576034�.1 3 DEVELOPER shall also be responsible for obtaining any public or private sanitary sewer,domestic water,draina�e,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, unless a time extension is granted by the CITY as authorized in Section(21). (2) Acauisition and Dedication of Easements or R.ig�hts-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 CITY or DEVELOPER, no construction or installation shall be commenced before: (a) The offer of dedication to CITY of appropriate rights-of-way, easements or other interests in real property, and 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 jurisdiction pursuant to the State Eminent Domain Law of an order of possession. DEVELOPER sha11 comply in all respects with the order of possession. Nothing in this Section(2)shall be construed as authorizing or granting an extension of time to DEVELOPER. 99999.099991�57G0340.1 � (3} Securi . DEVELOPER shall at all times guarantee DEVELOPER's performance by fumishing 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 amount of 100%of the estimated cost of the improvements; and (b) to secure payment to any contractor, subcontractor, persons renting eyuipment, or furnishing labar 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 secuiity is replaced by another approved security,the replacement shall: 1)comply with all the requirements for security in this Agreement;2)be provided to the City Engineer to be filed with the City Clerk and,upon filing, 3)shall be deemed to have been made a part of and incarporated 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 will 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 upon 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 99999.09999t5760340.1 5 cost of the improvement, DEVELOPER shall provide improvement security for faithful perforn�ance as required by Section (3) of this Agreement for one hundred percent(l00%) of the total esrimated cost of the improvements as changed, altered, or amended, minus any completed partial releases allowed by Section (6) of this Agreement. (b) The DEVELOPER shall construct the improvements in accordance with CITY standards in effect at the time of adoption af the Resolution of Appraval. CITY reserves the right to modify the standards applicable to the DEVELOPMENT and this Agreement, when necessary ta protect the gublic 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 campletion af the improvements, CITY may apply the standards in effect at the time of the extension. (5) Insuection. DEVELOPER shall at all times maintain proper facilities and safe access for inspection of the public iinprovements 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 representative. if the Ciry Engineer, or the designated representative, determines that the work has been completed in accordance with this Agreement,then the City Engineer shalt certify the completion of the public improvements to the City Council.No improvements shall be finally accepted unless all aspecis of the work have been inspected and completed in accordance with the Improvement Ptans. When applicable law requires an inspection to be made by City at a particular stage of the work of conshvcting and installing such improvements, CITY shall be given timely notice of DEVELOPER's readiness for such inspection and DEVELOPER shatl not proceed with additional work until the inspection has been made and the work appmved. �.on��s�bosao,� 6 DEVELOPER shall bear all costs of inspection and certification. No improvements shall be deemed completed until accepted pursuant to Section(l6)herein. (6) Release of Securities. The securities required by this Agreement shalt be released as following: (a) Security given for faithful performance of any act, obligation, work or agreement shall be released upon the final completion and 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 far faithful perfarmance 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%)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 authorize a release of the ilnprovement security which would reduce such security to an amount betow that required to �uarantee the completion of the improvement work and any other obligation imposed by this Agreement. (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 after completian and acceptance of the work, be reduced to an amount 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 required to assure the performance of any other �.o�r,s�bo�ao.i 7 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. {d) CITY may retain from any security released, an amount suf�icient to cover costs and reasonable expenses and fees, including reasonable attorneys' fees. (7} Iniury to Public Improvements. Public Propertv 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 swveying or subdivision monuments which are destroyed or damaged to the extent resulting from any work under this Agreement by DEVELOPER, its agents, employees,contractois or sub-contractors. DEVELOPER shall bear the cost of replacement or repairs of any and all public or public utility property, to the extent damaged or destroyed by reason of any work done under this Agreement, whether such property is owned by the United States or any agency thereof, or the State of California,or any agency or political subdivision thereof,or by CITY or any public or private utility corporation or by any combination of such owners. Any repair or replacement shall be to the satisfaction, and subject to the approval,of tlie City Engineer. (8) Permits. DEWELOPER shall, at DEVELOPER's expense, obtain a!I necessary permits and licenses for the construction and installation of the improvements, give al1 necessary notices and pay all fees and taxes required by law. (9) Default of DEVELOPER. (a) Default of DEVELOPER shall include, 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 in accordance with the terms of this Agreement; 99999.0999915760340.1 $ (3) DEVELOPER's failure to timely cure any defect in the improvements within fifteen(15)days of notice thereof; (4) DEVELOPER's failure to perform substantial construction work for a period of twenty (20)consecutive calendar days after commencement of the work subject to force majeur; (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 (7} 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 C1TY'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 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 �.o�ms�boaao.i 9 the public improvements in accordance with the improvement plans and specifications contained herein. (c) ]n 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 over the work and prosecute the same to completion, by contract or by any other method CITY may deem advisable, far the account and at the expense of DEVELOPER, and DEVELOPER's surety shall be liable to CITY for any excess cost or damages occasioned by C1TY thereby. In such event, CITY, without liability for so doing, may take possession of, and utilize in completing ihe 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) 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 reasonable fees and charges of architects,engineers,attorneys,other professionals,and court costs. (e) The failure of CITY to take an enforcement action with respect to a default, or to declare a breach, shall not be construed as a waiver of that default or breach or any subsequent default or breach of 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 performance of DEVELOPER'S obligations under this Agreement. �.o��xns�6o3ao.i t 0 (]I) 1l,�jurY �Q Work, Until such time as the improvements are accepted by CITY, DEVELOAER shall be responsible for and bear the risk of loss to any of the improvements constructed or installed. Until such time as all improvements reyuired 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. C1TY 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 tlie work or improvements. All such risks shall be the responsibility of and are hereby assumed by DEVEL�FER. (12) Warran . DEVELOPER shall guarantee or warranty the work done pursuant to this Agreement for a period of one year after final forma( acceptance of the improvements by the City Council against any defective work or labor done or defective materials furnished only to the extent of work done by or materials furnished by DEVELOPER, its agents, employees, contractors or sub-contractors. lf within the wa�ranry 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, after notice thereof, repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure. Should DEVEI,OPER 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 DEVELOPER 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, �s.o�ms��sao.t 11 CI1'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) Other Aereements. 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 other improvements, pursuant to the provisions of the CITY ordinances providing therefore,nor shall anything in this Agreement commit CITY to any such apportionment. (I4} DEVELOPER'S Obli�ation to Warn Pubiic During Construction Until 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, but only to the extent such condition is known by DEVELOPER, and will take all reasonable actions to protect the public from such dangerous condition. (15) Vestine of Ownershin. Upon formal final acceptance of the work by CITY and recordation of the Resolution of Acceptance of Public Improvements, ownership of the improvements constructed pursuant to this Agreement shall vest in CITY. (16) 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 a$er final completion and inspection of all improvements. The City Council shall act upon tl�e 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 (b). Such acceptance shall not constitute a waiver of defects by CITY. (17) 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 99999.0999915?60340.1 1,2 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 tliereof,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 oinissions af DEVELOPER, its agents, employees, contractors and subcontractors in the performance of this Agreement, except for such claims,demands, causes of action, liability, or lass arising out of the negligence of the CITY, its officials, boards, commissions, d�e members thereof, agents, and employees, including all claims, demands, causes of action, liability,or loss because of,or arising out of,in whole or in part,the design or construction of the improvements. This indemnification and agreement ta hold harmless shall extend to injuries to persons and damages or taking of property resulting from the design or consUuction 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 af public drainage systems, streets and other public improvements. Acceptance by C1TY of the improvements shall not constitute an assumption by CITY of any responsibility for any damage or taking covered by this Section. CITY shall not be responsible for the design or construction of the property to be dedicated or the improvetnents 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 hy DEVELOPER submitted to the City Engineer before approval of the particu]ar improvement design, which objection indicated that the particular improvement design was dangerous or defective and suggested an alternative safe and feasible desi�n. 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; 99999.0999915760340.1 1� however,DEVELOPER shall 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 Section that DEVELOPER shall be responsible for al) liability for design and construction of the improvements installed or work done pursuant to this Agreement and that CTTY shall not be liable for any negligence,nonfeasance,misfeasance or malfeasance in approving, reviewing,checking,or inspecting any work or construction.The improvement security shall not be required to cover the provisions of this Section. DEVELOPER shall reimburse CITY for all costs and expenses(including but not limited to fees and charges of architects, engineers, attorneys,and other professionals,and court costs) incurred by CITY in enforcing the provisions of this Section. (18) Personal Nature of DEVELOPER'S Obli at� �ons• All of DEVELOPER's obligations under this a�reement 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 Agree�nent, and DEVELOPER shall not be entitled to assign its obligations under 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, not to be unreasonably withheld. (19) 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 shal) relieve the DEVELOPER of the obligations under Section (17) for the work or improvement done by DEVELOPER. (20) Time of the Essence. Time is of the essence in the performance of this Agreement. �m�.oen�ms�6o3ao.i 14 (2l) 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 reasonably 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 shall not affect the validity of this Agreement or release the surety or sureties on any security given for this Agreement. The City Engineer shall be the sole and final judge as to whether or not good cause has been shown to entitle DEVELOPER to an extension. Delay 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 DEVELOPER, sliall constitute good cause for and extension of the time for completion. As a condition of such extension,the City Engineer may require DEVELOPER to furnish new security guaranteeing perforn�ance of this Agreement as extended in an increased amount as necessary to compensate for any increase in construction costs as reasonably determined by the City Engineer. (22) No Vestin�o�� Performance by DEVELOPER 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. (23) Notices. All notices required or provided for under this Agreement shall be in writing and delivered in person or sent by mail, postage prepaid and addressed as provided in this Section.Notice shall be effective on the date it is delivered in person,or, if mailed,on the w�e�s.o�xrns�bo3aa.� 15 date of deposit in the United States mail.Notices shall be addressed as follows unless a written change of address is filed with the City: Notice to CITY: City of Palm Desert 73-S10 Fred Waring Drive Palm Desert,California 92260 Attn: Public Works Director Notice to DEVELOPER: Darryl Herring c%The Gardens on El Paseo,LLC 200 East Long Lake Road Suite 300 Bloomfield Hills,MI,48304 Notice to SURETY: Comerica Bank 411 West Lafayette Detroit,MI 48226 (24) Comvliance With Laws. DEVELOPER, its agents, employees, contractors and subcontractors shall comply with all applicable federal, state and local laws in the performance of d�e improvements and land development work required by this Agreement. (25) Severabiliri. The provisions of this Agreement are severable. lf any portion of this Agreement is held invalid by a court of competent jurisdiction, the remainder of the agreement shall remain in full force and effect unless amended or modified by the mutual consent of the parties. (26) 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. 99999.0999415760340.t �b (27) Litigation or Arbitration. In the event that suit or arbitration is brought to enforce the terms of this Agreement, the prevailing party shall be entitled to litigation costs and reasonable attorneys' fees. (28) Incorporation of Recitals. The recitais to this Agreement are hereby incorporated into in the terms of this Agreement. (29) Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter. All modifications, amendments, or waivers af the terms of this Agreement must be in writing and signed by the appropriate representatives of the parties. (30) Interpretation. This Agreement shall be interpreted in accordance with the laws of the State of California. (31) Jurisdiction. Jurisdiction of all disputes over the terms of this Agreement shall be in the County of Riverside, State of California. 99999.0999915T60340.1 �7 BAY�,�Y CONBTRUCT��N PRWECT : TIIE GARDENS ON EL PASEO RENOVATlOW DESCRIrn � EIPASEo R.O.W SCOPE BUDGET pA't'E )uh 15,2013 DRIWING: z� - a �.� • ,H � ' ��*" � a� ""�.��,��"`� „,>.. y � ,� ti.� J"h, „s� .-��+.`��b3. «�� -�`'. � � �:'"i 111V 01.GP�,�,0.�L RE..^itIRBME_w!' Surveyrµ M�sc i dys I 50000 900 � i m 50000 ?I30 Temp wtaCawm�pwn 0 b oya,� SteetClann�losuaedlaJMsperwcdc! E Irs 12000 960 Genera!Cieanq�Adattwn fi SdaY 4U Irs SO 00 :.000 l�ll�u/-t;FN/.NA/XF{lUlk�,1/t.Nf f 4.Ot0 DiV e2.SQ:E WORK DEMO LI01 Drnw ConRpe b�d m udaa�dk 361 LF S 00 1 8I0 LIO! Sdage Peves fa ie-ine r p Paneo _+,?19 SF 1 SO 3 3'� UF.MU S S,fq �29oQ WdstspN��61ntp11se Cal Gold S�are Mufeh 2"duck 776 SF S 00 7.8fl0 Pqmap{Mer�an BmA syOe SC 1 gal 260 EA ?S 00 4500 w.du�an rro�wR aa o�roi t� a E� :,u�o 0o e.��o Mnnd saI m P�� 0 CY 6000 • ��=Yn 1 LS 1.663 00 1.66? /wxhaapirqtd mrRaraw S Ie.1Rt DN OS.CONCRETE BLDG.A SfrE CONCREIE h REBAR LIa1106 6a�d1 New cacreoe aub per notc 3i a6 LF i5 0� ?,070 MI/K:..t�XflF.CONY�R!f6 R RkNAN S i3OTD P�wr MstNalbn 1.20i.L20] RE•�aU exmr�pwas r EI Pmao a ncw p�nem desry�n m�peed�od 2.219 Si 5 Oo 11 192 P��b+��M� f 11,1�2 DIV 1�•BI,E(TRICAL SYSTEM 166/0 f.lep►kai Sy�se� hu�asM1 and lmdt I�ylt Fnc4ra nphgN 30 � 550 Ou 16.300 Fuash end IroWI NeuAs 1 S E�L ?5(100 }750 fikanartl.C�vtm S t0,IS0 7 ;,';, " s�`:� ; s�s�.,�, ��95?: Copy of TTe Gartlen ROW ScoM HuOgef 7 1 S40f 3�W I E!Paseo ROW bonq scppe Pape t ol t IN WITNESS WHEREOF,this Agreement is executed by the parties as of the date hereinabove first written;by CITY,by and through its Mayor. THE GARDENS ON EL PASEO,LLC CITY OF PALM DESERT DEVELOPER By: STEPHE . . KI MAYOR AUTHO Z SIGNATORY ATTEST CITY CLERK APPR4VED AS TO FORM: CITY ATTORNEY �.oe��s�bo34o.� 18 (�I��h � AN STATE OF E'�Ft�F6�4 ) �Ak�/�n11> COUNTY OF R�$}i£,�HE ) On � � ,2013 before me, `�'"� (e- �� 7"occ�e. � _,Notary Public, onally appeared�, -}-Q.�h,�o.iv � , i�Xs( 5 ,wha proved to me on the basis of satisfactory 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 hisJher/their authorized capacity(ies},and that by his/her/their signature(s)on the instrument the person(s),or the entity upon behalf af which the person(s)acted,executed the inshvment. rn�c,h� Rn� 1 certify under PENALTY OF PERJURY under the laws of the State of E�€et�t�hat the foregoing paragraph is true and correct. WITNESS my hand and official seat. Signature: ,.� seal � ) CAROLEA P'OWB.L lIOTARY PUBJG SI'ATE OF#M OOlpifY0F0�Aq,AND MY C061�N E7�IRESJd 19�2018 ACTINfit W OOUNTY OF 99999.09994i5760340.i THE GARDENS AT EL PASEO ' � APN:627211024 APN: 627211022 � � House#:45120 House#: 73605 � � I �_ _..__ __.__.__....�_-_----__�___.__-_ —{-t{+A9E0 APN:RW � Hause#:0 � APN:627261007 Houseif:73585 � � � �i � g � Q � 4 � � O W-iNOt�N��AiN-DRI V OSHU!!-TREE-STREE� Legend Q 1� 1,895 — Circulation Nefwork Streets (_' City Boundary ❑ Parcels(1/2014) o City Boundary Notes