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HomeMy WebLinkAboutContract 1973 0 -(q1- 3 CITY OF CATHEDRAL CITY IMPROVEMENT AGREEMENT for Conditional Use Permits CUP 20-020 and 20-021 DATE OF AGREEMENT: NAME OF DEVELOPER: PCC CATHEDRAL CITY, LLC. a California Limited Liability Company (REFERRED TO AS "DEVELOPER") NAME/NUMBER OF USE PERMIT: CONDITIONAL USE PERMITS CUP 20-020 and 20-021 (REFERRED TO AS "CUP 20-020 and 20-021") CONDITIONAL USE PERMIT APPROVAL: APPROVED BY CITY PLANNING COMMISSION ON MARCH 17, 2021 AND APRIL 21, 2021, RESPECTIVELY EST. TOTAL COST OF EST. TOTAL COST OF EST. TOTAL COST OF MAP PUBLIC IMPROVEMENTS: PRIVATE IMPROVEMENTS MONUMENTATION: $ 232,392.00 $ 23,000,00 N/A (see Exhibit B) (see Exhibit B) FAITHFUL PERFORMANCE SECURITY REQUIRED: $ 255,400 (rounded) CASH ON DEPOSIT: This Improvement Agreement (the "Agreement") is made and entered into by and between the City of Cathedral City, a California municipal corporation, hereinafter referred to as "CITY", and PCC Cathedral City, LLC, a California limited liability company, hereinafter referred to as "DEVELOPER". CITY and DEVELOPER are sometimes referred to hereinafter individually as a "Party" and collectively as the "Parties." RECITALS A. DEVELOPER has presented to CITY applications for the development of cannabis businesses (hereinafter"DEVELOPMENT")in existing commercial buildings on property located at the southeast corner of Cathedral Canyon Drive and Perez Road, at 68625 Perez Road, which is described in the legal description attached hereto as Exhibit "A", and has submitted applications for approval of conditional use permits therefor, CUP 20-020 and 20-021, as required by CITY's Zoning Code and ordinances. Page 1 of 16 B. The City Planning Commission (the "Commission") reviewed the applications and approved CUP 20-020, on March 17, 2021, and approved CUP 20-021, on April 21, 2021, with both approvals subject to certain conditions of approval (hereinafter the "Conditions of Approval"), and applicable City codes and laws. The Staff Report for these use permits and the Conditions of Approval are incorporated into this Agreement by this reference as if set forth fully herein. C. The Conditions of Approval required that prior to the issuance of a final Certificate of Occupancy (hereafter "CO") for the DEVELOPMENT, the DEVELOPER shall complete certain public and private improvements or defer their completion by entering into a performance agreement with the CITY, secured with sufficient improvement securities (the "Improvement Securities") to guarantee the construction and completion of all the public and private work required by the conditions of approval, which included the construction of public sidewalks, modification of driveways, installation of a street light, slurry coating and restriping of parking lots, providing accessible ramps, and other improvements along the Perez Road frontage of the Property and upon the parking lots and aisles on said Property. D. In consideration of the approval of CUP 20-020 and 20-021, and the issuance by the CITY of a Temporary Certificate of Occupancy (TCO)for all or portions of the Development, DEVELOPER desires to enter into this Agreement, whereby DEVELOPER promises to install and complete, at DEVELOPER's own expense, all the public and private improvements and related work required by the Conditions of Approval and the CITY in connection with the DEVELOPMENT (the "Improvements"). DEVELOPER has secured this Agreement with Improvement Securities as required by the Conditions of Approval and as approved by the City Attorney. E. Improvement Plans (the "Plans") for the construction, installation, and completion of the public and private Improvements have been prepared by DEVELOPER and approved by the City Director of Engineering. The Plans are on file in the Office of the Director of Engineering and are incorporated into this Agreement by this reference as if set forth fully herein. All references in this Agreement to the Plans shall be deemed to include reference to any specifications for the Improvements as approved by the Director of Engineering. F. A description of the public and private Improvements and an estimate of the cost for construction of the Improvements according to the Plans has been made and approved by Page 2 of 16 L the Director of Engineering. The estimated cost of these Improvements is set forth in Exhibit "B" to this Agreement, which is attached hereto and made part of this Agreement by this reference. The amounts of the Improvement Securities required to be posted with this Agreement are also based upon this estimate. G. DEVELOPER recognizes that by CITY approving CUP 20-020 and 20-021 and issuing building permits for the DEVELOPMENT, CITY has conferred substantial rights upon DEVELOPER, including the right to sell, lease, or finance the entitled property, and to improve the property by the reconstruction, renovation or expansion of the existing buildings and related improvements. As a result, CITY will be damaged to the extent of the cost of installation of the public and private Improvements by DEVELOPER's failure to perform its obligations under this Agreement, including, but not limited to, DEVELOPER's obligation to timely prosecute and complete construction of the Improvements required by the Conditions of Approval within the time limits established hereafter in this Agreement. CITY shall be entitled to all remedies available to it under this Agreement and at law or in equity in the event of a default by DEVELOPER. NOW, THEREFORE, in consideration of the approval of CUP 20-020 and 20-021, the issuance building permits for the DEVELOPMENT, and the CITY's expected issuance of a Temporary Certificate of Occupancy (TCO) or a permanent Certificate of Occupancy (COO), the DEVELOPER and CITY agree as follows: 1. DEVELOPER's Obligation to Construct Improvements. a. In constructing and installing the Improvements, DEVELOPER shall comply with all the requirements of the Conditions of Approval; any amendments to the Conditions of Approval authorized by the CITY and the provisions of applicable City and State codes and laws; b. DEVELOPER shall complete at DEVELOPER's own expense,all the public and private Improvements and related work along Perez Road and on the Property, as required in the Conditions of Approval and in conformance with approved Plans and CITY standards, including without limitation:the improvement of Perez Road along the frontage of DEVELOPMENT, including but not limited to demolition of existing curbs, and parkway improvements, installation of new curb and gutter, driveways, paving, sidewalks, street light, access ramps, parking lot surface slurry coating, striping, and all related appurtenances, and all other improvements described in Subsection 1 (b) herein, within Page 3 of 16 Two (2) years of the date of City Council approval of this Agreement, or prior to the issuance of a final Certificate of Occupancy (CO) for any of the businesses permitted under conditional use permits 20-020 or 20-021, whichever occurs first. It is understood by the Parties hereto that temporary approval by the CITY for use of utilities in the buildings for the purposes of testing equipment and/or mechanical systems shall not constitute a Temporary Certificate of Occupancy (TCO) or evidence of completion of building improvements or their suitability for commercial use and occupancy. c. DEVELOPER shall diligently prosecute construction of the Improvements same b the deadlines stated in Subsections 1 b above, unless a time extension and completey ( ) is granted by the CITY as authorized in Section 19 of this Agreement. 2. Improvement Securities, a. DEVELOPER shall at all times guarantee DEVELOPER's performance of this Agreement by furnishing and maintaining good and sufficient Improvement Securities with CITY as required by the Conditions of Approval and applicable State and local laws, on forms approved by CITY for the purposes and in the amounts as follows: Two Hundred Fifty-Five Thousand Four Hundred Dollars ($255,400.00)to ensure faithful performance of the construction and installation of the public and private improvements and appurtenances as required by this Agreement ("Performance Security"), which amount is 100% of the estimated cost of the Improvements as set forth in Exhibit B. b. The Improvement Securities required by this Agreement shall be kept on deposit with the City. The terms of the security documents referenced in this Agreement are incorporated into this Agreement by this reference as if set forth fully herein. If any security is replaced by another type or kind of approved security, after approval thereof by the City Attorney, the replacement shall be filed with City Clerk and, upon filing,shall be deemed to have been made a part of and incorporated into this Agreement. Upon filing of a replacement security with the City Clerk, the former security may be released. 3. Alterations to Improvement Plans. a. Any changes, alterations or additions to the Plans or to the Improvements, not exceeding 10% of the original estimated cost of the Improvements, which are mutually agreed upon by CITY and DEVELOPER, shall not relieve or release the Performance Security given by Developer under this Agreement. In the event such changes, alterations, or additions Page 4 of 16 exceed 10% of the original estimated cost of the Improvements, DEVELOPER shall provide additional Performance Security as required by Section 2 of this Agreement for 100% of the total estimated cost of the Improvements as changed, altered, or amended, minus any completed partial releases allowed by Section 5 of this Agreement. b. The DEVELOPER shall construct the Improvements in accordance with the CITY standards in effect at the time of approval of CUP 20-020 and 20-021. CITY reserves the right to modify 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 time for completion of the Improvements, CITY may apply the standards in effect at the time of the extension. 4. Inspections. DEVELOPER shall at all times maintain proper facilities and safe access for inspection of the Improvements by CITY inspectors and to the shops and areas wherein any work is in preparation. Upon completion of the Improvements covered in this Agreement, the DEVELOPER may request a final inspection by the City Director of Engineering or his authorized representative. If the Director or his/her authorized representative, determine that the Improvements have been completed in accordance with this Agreement, then the Director shall: certify the completion of the public improvements, and place an item on the next most convenient City Council agenda seeking formal acceptance of the Improvements and release of Improvement Securities; and authorization to file a Notice of Completion. Said determination by the Director of Engineering and agendization of the acceptance and release shall not be unreasonably withheld or delayed. No Improvements shall be finally accepted unless all aspects of the work have been inspected and determined to have been completed in accordance with the Improvement Plans, CITY standards, and the Conditions of Approval. DEVELOPER shall bear all costs of inspection and certification. 5. Release of Security a. The Performance Security shall be released upon the final completion and acceptance of the Improvements by the Council subject,to the provisions of this Section. Upon final completion of all Improvements under this Agreement, and after City Council acceptance, the CITY shall file a Notice of Completion in accordance with California Civil Code. Page 5 of 16 b. If Cash on Deposit is used as Performance Security, then the principal amount may be reduced from time to time by the Director of Engineering/Public Works, upon his written notification to the City's Administrative Services Department that sufficient work or progress has been made to allow the principal amount held to be decreased, which notification shall be based upon written evidence submitted to the Director by the Developer, supported by sufficient documentation to support the decrease in principal. CITY and DEVELOPER agree that not more than three (3) requests for reduction or partial release the Cash Deposit shall be considered between the start of construction and the completion and acceptance of the Improvements by the CITY c. The CITY may retain from any security released, an amount sufficient to cover costs and reasonable expenses and fees, including reasonable attorney's fees. d. In no event shall the Director of Engineering authorize a release of the Cash Deposit which would reduce such secu rityto an amount below that required to guarantee the completion of the Improvements and any other obligations imposed by this Agreement. 6. Injury to Public Improvements, Public Property or Public Utilities Facilities DEVELOPER shall replace or have replaced, or repair or have repaired, as the case may be, any and all public or private improvements, public utilities facilities and survey 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 private improvements or 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 the CITY or any public or private utility corporation or by any combination of such owners. Any repair or replacement shall be made to the reasonable satisfaction, and subject to the approval of the Director of Engineering and the owner of any such public or private improvement. 7. 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. 8. Notice of Breach/Default of DEVELOPER. a. Default of DEVELOPER shall include, but not be limited to: DEVELOPER's failure to timely complete construction of the Improvements; DEVELOPER's failure to timely Page 6 of 16 cure any defect in the Improvements; DEVELOPER'sfailureto perform substantial construction work for a period of 20 calendar days after commencement of the work; 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 30 days; the commencement of a foreclosure action against the DEVELOPMENT or a portion thereof, or any conveyance in lieu or in avoidance of foreclosure; DEVELOPER'sfailureto keep the Improvement Securities in full force and effect; or the failure of DEVELOPER or DEVELOPER's contractors, subcontractors, agents or employees to comply with any other terms and provisions of this Agreement. b. In the event of any such default,the Director of Engineering or City Cou n cil may serve written notice to DEVELOPER specifying in reasonable detail the nature of the default. DEVELOPER shall have thirty (30) days from receipt of said notice to cure the default; provided that, if the default is not reasonably susceptible to being cured within said thirty (30) days, DEVELOPER shall have a reasonable period of time to cure the default so long as DEVELOPER commences to cure the default within said thirty (30) days and diligently prosecutes the cure to completion. c. If following service of such written notice of default, DEVELOPER fails to cure or commence curing the default to the satisfaction of CITY within the cure period specified in Subsection 8(b), the Director of Engineering or the City Council may serve notice of DEVELOPER's default upon DEVELOPER, in accordance with the notice provisions set forth in Section 21 of this Agreement. d. In the event of service of the notice of default specified in Subsection 8(c), , CITY may take over the work and prosecute the Improvements to completion, by contract or by any other method CITY may deem advisable, for the account and at the expense of DEVELOPER, and DEVELOPER shall be liable to CITY for any costs or damages occasioned CITY thereby; and, in such event, CITY, without liability for so doing, may take possession of, and utilize in completing the Improvements, such materials, appliances, plantand other property belonging to DEVELOPER as may be on the site of the work and necessary for the completion of same. e. The CITY reserves to itself all remedies available to it at law or in equity for DEVELOPER's default under this AGREEMENT. The CITY shall have the right, subject to this Section, to draw upon or utilize the appropriate Improvement Securities to mitigate CITY's damages in event of default by DEVELOPER. The right of CITY to draw upon or utilize the Improvement Securities is additional to and not in lieu of any other remedy available to CITY. It is specifically recognized that the estimated costs and amounts of Improvement Securities may Page 7 of 16 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 actual cost of completing the required Improvements. The sums provided by the Improvement Securities may be used by CITY for the completion of the Improvements in accordance with the Plans. f. Failure of DEVELOPER to comply with the terms of this Agreement shall constitute consent to the filing by CITY of a notice of violation against all the real property and buildings in the DEVELOPMENT, or to rescind the approval of CUP 20-020 or 20-021. The remedies provided by this Subsection (f) are in addition to and not in lieu of any other remedies available to CITY at law or in equity. DEVELOPER agrees that the choice of remedy or remedies for DEVELOPER's default or breach shall be in the discretion of CITY. g. In the event that DEVELOPER fails to perform any obligation hereunder, DEVELOPER agrees to pay all costs and expenses incurred by CITY in securing performances of such obligations, including costs of suit and reasonable attorney's fees. h. The failure of CITY to take an enforcement action with respect to a default, or to declare a default or breach, shall not constitute a waiver of that default or breach, or of any subsequent default or breach of DEVELOPER. 9. Warranty a. For a period of one (1) year after final acceptance by the City Council of the work and Improvements, DEVELOPER shall guarantee or warranty the Improvements against any defective work or labor done or defective materials furnished. If within the warranty period any work or Improvements or any part of thereof furnished, installed, constructed or caused to be done, furnished, installed or constructed by DEVELOPER fails to fulfill any of the requirements of this Agreement or the Plans, DEVELOPER shall without delay and with out any cost to CITY, commence to repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure within thirty (30) days of receiving written notice from CITY of the defect and diligently prosecute the repair or replacement work to completion. b. Should DEVELOPER fail to act promptly or in accordance with the repair/replacement requirements set forth herein, DEVELOPER hereby authorizes CITY, at CITY's option, to perform the repair/replacement work twenty (20) days after mailing written notice to DEVELOPER,and DEVELOPER agrees to pay CITY for the cost of such work. c. Should the CITY determine that an emergency or a threat to the public safety and welfare exists from the condition of the Improvements which require repairs, Page 8 of 16 replacements or remedial measures to be made before DEVELOPER can be notified, CITY may, in its sole discretion, make the necessary repairs or replacements or perform the necessary work and DEVELOPER shall pay to CITY the cost of such repairs. 10. DEVELOPER Not Agent of CITY Neither DEVELOPER nor any of DEVELOPER's agents, employees, or contractors are or shall be considered to be agents of CITY in connection with the performance of DEVELOPER's obligations underthis Agreement. 11. Injury 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 constructed or installed and shall be responsible for the care, maintenance of and any damage to such Improvements. Neither the CITY, nor any of its agents, officers or employees shall 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 by the CITY. All such risks shall be the responsibility of and are hereby assumed by DEVELOPER. 12. Other Agreements Nothing contained in this Agreement shall preclude CITY from expending monies pursuant to agreements concurrently or previously executed between the Parties, if any,or from entering into agreements with other developers or subdividers. 13. DEVELOPER 's Obligation to Warn Public During Construction Until 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 actions to protect the public from such dangerous conditions on or around the work site. 14. Vesting of Ownership Upon acceptance of the work and Improvements on behalf of the CITY, and after recordation of the Notice of Completion, ownership of the public improvements constructed on Perez Road pursuantto this Agreement shall vest in CITY. Page 9 of 16 15. Final Acceptance of Improvements Acceptance of the Improvements on behalf of CITY shall be made by the City Council upon recommendation of the Director of Engineering after final completion and inspection of all Improvements as described in Section 4 of this Agreement. Such acceptance shall not constitute a waiver of any defects by CITY. 16. Indemnity/Hold Harmless a. Neither the CITY, nor its officers, agents and employees, shall be liable or responsible for any accident, injury, loss, or damage to either property or person attributable to or arising out of the construction or installation of the Improvements. DEVELOPER shall indemnify, hold harmless and defend the CITY, its officers, agents and employees, from and against any and all losses, claims, costs, expenses, liabilities, damages, actions, causes of action and judgments, including reasonable attorneys' fees, arising out of or attributable to DEVELOPER's performance u nderth is Agreement. b. DEVELOPER's indemnity and hold harmless obligations under this Section 16 are not conditioned or dependent upon whether the CITY, or its officers, agents and employees, prepared, supplied or reviewed any Improvement Plans or related specifications in connection with the Improvements, or whether CITY or DEVELOPER has insurance or other indemnification covering any of these matters. c. DEVELOPER's obligation to indemnify, hold harmless and defend the CITY shall extend to injuries to persons and damages to or alleged taking of property resulting from the design or construction of Improvements, and shall likewise extend to adjacent property owners asserting claims based upon the diversion of waters caused by the DEVELOPER's design or construction of public drainage systems, streets, and other public facilities or improvements. The CITY's acceptance of the Improvements shall not constitute an assumption by the CITY of any responsibility or liability for any damage or alleged taking of property referenced herein. CITY shall not be responsible or liable for the design or construction of the Improvements constructed or installed pursuant to the Plans, unless the particular lmprovemen t design was required by the CITY over the written objection of the DEVELOPER,which objection stated that the Improvement design was potentially dangerous or defective and set forth an alternative design.After CITY's acceptance of the Improvements, the DEVELOPER shall remain obligated to correct or eliminate all dangerous conditions created by defects in design or construction; provided, however, that the DEVELOPER shall not be responsible for routine maintenance. DEVELOPER's obligations hereunder shall remain in effect for ten (10) years Page 10 of 16 following acceptance of the Improvements by the CITY Council. DEVELOPER acknowledges and agrees that DEVELOPER shall be responsible and liable forthe design and construction of the Improvements and other work done pursuantto this Agreement, and CITY shall not be liable for any acts or omissions in approving, reviewing, checking, correcting or modifying any Plans, or in inspecting, reviewing or approving any work or construction of Improvements. The DEVELOPER's Improvement Securities shall not be required to secure the DEVELOPER's obligations underthis Subsection (c)beyond the one-year guarantee and warranty period. d. To the extent that this Agreement constitutes a construction contract pursuant to Civil Code section 2783, DEVELOPER's duty to indemnify, hold harmless an defend the CITY pursuant to this Section shall not apply to liability arising from the sole or active negligence or willful misconduct of the CITY. 17. .Sale or Disposition of DEVELOPMENT Sale or other disposition of the DEVELOPMENT or the parcel on which the DEVELOPMENT is being constructed will not relieve DEVELOPER from the obligations setforth in this Agreement. If DEVELOPER sells or disposes of the DEVELOPMENT, the property or any portion thereof to any other person or party, the DEVELOPER shall request a novation of this Agreement and a substitution of Improvement Securities. Upon approval of the novation and substitution of Improvement Securities by CITY, the DEVELOPER may request a release or reduction of the Securities required by this Agreement. Nothing in the novation shall relieve the DEVELOPER of the obligations under any other Section of this Agreement for work or Improvements performed by DEVELOPER priorto the novation. 18. Time of the Essence Time is of the essence of this Agreement. 19. Time for Completion of Improvements; Extensions. a. DEVELOPER shall commence and diligently prosecute to completion construction of the Improvements required by this Agreement. In the event good cause exists as recommended by the Director of Engineering and approved by the City Manager, the time for completion of the improvements as specified in Subsections 1(b) of this Agreement may be extended, provided the DEVELOPER submits the extension request to CITY in writing prior to the expiration of the time period specified in said Subsection 1(b). Any such extension granted shall be subject to the limitations set forth in Subsection 19 (c) and shall be made by writing executed by the City Manager in a form as approved by the City Attorney.. Page 11 of 16 b. 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 Improvement Securities given for this Agreement. The City Manager shall be the sole and final judge as to whether or not good cause has been shown to entitle DEVELOPER to an extension. In addition, the time for completion of the Improvements shall be extended for any delay resulting from an act of CITY, or by an act of God, which DEVELOPER could not have reasonably foreseen,or by storm or inclement weather which prevents the conducting of work, or by strikes, boycotts, similar actions by employees or labor organizations, which prevent the conducting of work,and which were not caused by or contributed to by DEVELOPER; provided that DEVELOPER provides CITY with written notice of the delaying event within fifteen (15) days of the commencement of the delay. c. As a condition of granting an extension of time to complete the Improvements required by this Agreement, the City Manager may require DEVELOPER to furnish new or additional Improvement Securities guaranteeing performance of this Agreement as extended in an increased amount as necessary to compensate for any increase in construction costs as determined by the Director of Engineering. 20. No Vesting of Rights. This Agreement shall not be construed to vest DEVELOPER's rights with respect to any change in any zoning or building law or ordinance. 21. Notice. All notices required by or provided for under this Agreement shall be in writing and delivered in person or sent by certified or registered mail, postage prepaid and addressed as provided in this Section. Notice shall be effective on the date it is delivered in person, or, if mailed, on the date of deposit in the United States Mail. Notices shall be addressed as follows unless a written change of address is filed with the City: Notice to CITY: City of Cathedral City 68-700 Avenida Lalo Guerrero Cathedral City, CA 92234 Attn: City Manager Notice to DEVELOPER: PCC Cathedral City, LLC. 68625 Perez Road, Suites 1 & 2. Cathedral City CA 92234 Attn: Edlin Kim Page 12 of 16 Phone: 646-915-5308 E-Mail:_ekim@falcon brands.com With a Copy To: NO\ Notice to Surety: N/A CJS . tit Pos r 22. Severability. The provisions of this Agreement are severable. If any portion of this Agreement is held invalid by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect unless amended or modified by the mutual consent of the Parties. 23. 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. 24. Insurance. (a) DEVELOPER shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, a policy or policies of Commercial General Liability Insurance, with a minimum combined single limit of One Million Dollars ($1,000,000) for each occurrence and Two Million Dollars ($2,000,000) in the aggregate, against any personal injury, death, loss or damage resulting from the wrongful or negligent acts of the DEVELOPER or any contractors or subcontractors in the performance of this Agreement. . Said policy shall include coverage for manufacturers and contractors, independent contractors, products and completed operations and personal injury. (b) DEVELOPER shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, a policy or policies of Commercial Vehicle Liability Insurance covering personal injury and property damage, with minimum limits of One Million Dollars ($1,000,000) per occurrence combined single limit, covering any vehicle utilized by DEVELOPER in performing the services required by this Agreement. Page 13 of 16 (c) DEVELOPER agrees to carry, maintain, and keep, in full force and effect, at all times during the performance of work under this Agreement workers' compensation insurance as required by law, and in case any work is sublet, DEVELOPER shall require any contractor or subcontractor similarly to provide Worker's Compensation Insurance for all contractor's or subcontractor's employees, unless such employees are covered by the protection afforded by DEVELOPER. (i). In case any class of employees engaged in work under this Agreement at the work site(s) is not protected under any Worker's Compensation law, DEVELOPER shall provide and shall cause each contractor or subcontractor to provide, adequate insurance for the protection of employees not otherwise protected. (i). DEVELOPER hereby indemnifies CITY for any damages or claims resulting from failure of either DEVELOPER or any contractor of subcontractor to take out or maintain such liability or workers compensation insurance. (d) The policy or policies required by this Section shall be issued by an insurer admitted in the State of California and with a rating of at least a B+;VII in the latest edition of Best's Insurance Guide. (e) DEVELOPER agrees that if it does not keep the aforesaid insurance in full force and effect, CITY may immediately terminate this Agreement. (f) Prior to the commencement of any work under this Agreement, and at all times thereafter, DEVELOPER shall provide and maintain on file with the CITY Clerk a certificate or certificates of insurance in a form acceptable to the City Attorney, showing that the aforesaid policies are in effect in the required amounts. The policies of insurance required by this Agreement shall contain an endorsement naming CITY as an additional insured. All of the policies required under this Agreement shall contain an endorsement providing thatthe policies cannot be canceled or reduced except on thirty (30) days prior written notice to CITY, and specifically stating that the coverage contained in the policies affords insurance pursuant to the terms and conditions as set forth in this Agreement. (g) The insurance provided by DEVELOPER shall be primary to any coverage available to CITY. The policies of insurance required by this Agreement shall include provisions for waiver of subrogation. Page 14 of 16 (h) Any deductibles or self-insured retentions must be declared to and approved by CITY prior to the commencement of work under this Agreement. At the option of CITY, DEVELOPER shall either reduce or eliminate the deductibles or self-insured retentions with respect to CITY, or DEVELOPER shall procure a bond guaranteeing payment of losses and expenses. (i). DEVELOPER shall not commence work under this Agreement until DEVELOPER shall have obtained all insurance required pursuant to this Section, and such insurance has been approved by CITY, nor shall DEVELOPER allow any contractor or subcontractor to commence work on the contract or subcontract until all similar insurance required of the contractor or subcontractor has been obtained and approved by City. 25. Attorneys' Fees. In the event any action at law or in equity is brought to enforce the terms of this Agreement, the prevailing Party shall be entitled to litigation costs and reasonable attorneys' fees. 26. Incorporation of Recitals. The Recitals to this Agreement are hereby incorporated into in the terms of this Agreement. 27. Entire Agreement. This Agreement constitutes the entire agreement of the Parties and supersedes any prior written or oral agreements between them with respect to the subject matter hereof. All modifications, amendments, or waivers of the terms of this Agreement must be in writing and signed by the appropriate representatives of the Parties. 28. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California. 29. Authority of Executing Parties. The persons executing this Agreement warrant that they are duly authorized to execute this Agreement on behalf of and bind the Parties each purports to represent. Page 15 of 16 IN WITNESS WHEREOF, this Agreement is executed by the Parties hereto on the date above first written. DEVELOPER: CITY: PCC CATHEDRAL CITY, LLC CITY OF CATHEDRAL CITY a California Limited Liability Company A Municipal Corporation eAla-1°: By: , By Edlin Kim, Charles P. McClendon Its Manager City Manager ATTEST: See attachedilg .11 Certificate Tracey ' e mosillo,CMC City Clerk APP�Vi• • FO: ,;- City Attorney APPRO ED S �; as TENT: Di - or of ngineerin. (Proper Notarization of DEVELOPER's Signature is required and shall be attached) Page 16 of 16 it CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 :;e;csF:C`.�C:BSc`.:(',s?+cY.ccY,rcyiA,clyc '. - ..c,c,c�(..cac�!`,meaC'.FC`.Fcf':t'crcofhicy. ,�=0..c:P.c .,c:l�',<Yo'. .... A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California County of a ra Y\ Q. ) • l On 613 /ZOa2 before me, C . I� 10040tf y �Ub � IG Date / Here Insert Name and Title of the Officer f personally appeared ol/ I fl K I !i Name(s)of SignerK who proved to me on the basis of satisfactory evidence to be the persona'whose name(sr is(e subscribed to the within instrument and acknowledged to me that he/site/they executed the same in his/her/their authorized capacity(ies)',and that by his/ er4e}r 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. WITNESS my hand and official seal. tr °i rti C.MIER Notary Public•California Orange County � Signature !`, Commission#2331260 Signature of Notary Public 4L, .0' My Comm.Expires Aug 6,2024 Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document• C , of Ca\-ke Aral C 1 fy IMprJven-,eh-4 AFif1ed1-ev-4 Document Date: 3/Z G Z Z Number of Pages: S iX-{ee n v s e Signer(s) Other Than Named Above: Pcr iv" Ht CUP 2G-ozo Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: 10-02 I ❑Corporate Officer — Title(s): ❑Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑General ❑ Partner — ❑ Limited ❑General ❑Individual ❑Attorney in Fact ❑ Individual ❑Attorney in Fact ❑Trustee ❑Guardian or Conservator ❑Trustee ❑Guardian or Conservator ❑Other: ❑ Other: Signer Is Representing: Signer Is Representing: .•y y .'.V ` R: WCUICL'C7ic:WLi:L`i ZF �.�s a`4243..C WW{.• ©2015 National Notary Association •www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907 L Industrial Court L11, LLC First Foundation Bank 007297 34 Tesla, Suite 200 18101 Von Karman Avenue Irvine,CA 92618 Ste 150 Irvine,CA 92612 ti/(1)/2 2- • ORDER OFE $ goo .cn t/ of Ca f h 4ya/ C<f S-s-/ y �o Two hun arta' i - 'r'v' fha ja 'd f c' r hoc�radt' and /a) DOLLARS • MEMO: Pcc (?lf,elatI C/fy Sry/WeMi/7f,yeez4,7 .•IZEDSIGNATUR' IIII 7297" 1: L2228758Li: 580500L73LII' o THIS DOCUMENT CONTAINS HEAT SENSITIVE INK.TOUCH OR PRESS AND RED IMAGE DISAPPEARS WITH HEAT. 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