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DATE: March 16, 2011 CONSENT
SUBJECT: ASSIGNMENT AGREEMENT/LAS PALMAS HEIGHTS
SUBDIVISION TRACT 27680
FROM: David H. Ready, City Manager
BY: Douglas Holland, City Attorney
SUMMARY:
The proposed assignment agreement between the City of Palm Springs and the Las
Palmas Homeowners Association assigns to the Las Palmas Heights Homeowner's
Association to make a claim on a security instruments held by the City to address
certain unfinished street work located within this gated community.
RECOMMENDATION:
1. Approve the assignment agreement between the City of Palm Springs and the
Las Palmas Homeowners Association.
2. Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
The original developer, Las Palmas Heights LLC, of the Las Palmas Heights subdivision
tract (Tract# 27680) failed to complete street and related work both within this gated
community and adjacent to the project. Staff has estimated that the remaining work
totals approximately $85,000. The performance bond with American Contractors
Indemnity Surety Company has not been released by the City. The amount of the bond
should cover the uncompleted improvements. The homeowners association has
requested that the City assign its rights under the subdivision improvement agreement
and as holder of the surety bond and related security to the HOA so that the HOA can
work directly with the surety company in obtaining the completion of street and related
improvements within this gated community.
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City Council Staff Report
Assignment/Las Palmas Heights
March 16, 2011
The City Attorney has worked with legal counsel representing the homeowners
association to provide an appropriate assignment agreement to accomplish this
purpose. The Agreement in essence assigns all city rights to the subdivision
improvement agreement and the surety bond to the association, and in return, the City
would be relieved of its obligations under the subdivision improvement agreement and
association agrees to release the City from any further obligations under the bonds.
FISCAL IMPACT:
There is no direct fiscal impact associated with the adoption of this resolution.
Douglas Holland, City Attorney David H. Read Manager
David J. Barakian Thomas J. Wilso
City Engineer & Director of Public Works Assistant City Manager
Attachment:
Assignment Agreement
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ASSIGNMENT AGREEMENT
Las Palmas Heights
This ASSIGNMENT AGREEMENT, hereinafter "Agreement" made this day of
by and between THE CITY OF PALM SPRINGS, hereinafter "Assignor,"
having its principal office at 3200 E. TUuitz Canyon Way, Palm Springs, CA and LAS
PALMAS HEIGHTS OWNERS ASSOCIATION, hereinafter"Assignee,"having its principal
office at P.O. Box 2242, Palm Springs CA, 92263-2242, collectively referred to as "Parties," in
consideration of the mutual covenants herein contained and other good and valuable
consideration, the sufficiency of which is hereby acknowledge, witnesseth:
Recitals:
A. Assignor entered into a subdivision improvement agreement with Las Palmas Heights,
LLC ("Developer") for the Las Palmas Heights subdivision, Tract No. 27680.
B. Assignor is the Beneficiary of the following bonds (hereinafter referred to as "the Surety
Bonds") securing Developer's performance of its obligations under the subdivision improvement
agreement:
• Labor and Materials Bond #177599, dated May 20, 2004, issued by American
Contractors Indemnity Company with Las Palmas Heights as its stated principal to be
held firmly bound unto the City of Palm Springs and all contractors, subcontractors,
laborers, materialmen and other persons employed in the performance of the Subdivision
Improvement Agreement.
• Bond for Maintenance and Warranty of Improvements #215876, dated May 20, 2004,
issued by American Contractors Indemnity Company with Las Palmas Heights as its
stated Principal to guarantee the costs or repair and/or replacement of defective materials
or defective workmanship in improvements under the Subdivision Improvement
Agreement.
• Bond for Faithful Performance, Labor, and Materials for Setting of Monuments #177600,
dated May 20, 2004, issued by American Contractors Indemnity Company with Las
Palmas Heights as its stated Principal to guarantee the faithful performance of the
Subdivision Improvement Agreement as related to the setting of certain survey
monuments and the payment of the engineer or surveyor for the setting of monuments.
C. Developer has failed to complete all of the improvements required to be installed
pursuant to the subdivision improvement agreement.
D. Assignee has requested Assignor to assign Assignor's rights and obligations under the
subdivision agreement and the Surety Bonds to Assignee. Surety Bonds to Assignee,
NOW THEREFORE, Assignor and Assignee agree as follows:
755695.1
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ASSIGNMENT AGREEMENT
Las Palmas Heights
ASSIGNMENT AND RELEASE
1. Assignor and. Assignee hereby agree that the Assignor shall assign all of its rights,
obligations, duties, and liabilities arising under, contained within or in respect to the
subdivision improvement agreement and the Surety Bonds.
2. Assignee hereby fully accepts the foregoing assignment and unconditionally agrees to
assume all of the rights and obligations of Assignor with respect to the subdivision
improvement agreement and the Surety Bonds with the same force and effect as if
Assignee had initially become Beneficiary under the Bonds at the time of its
execution.
3. As of the date of execution of this Agreement, Assignor shall have no further rights,
obligations, and liabilities of any kind whatsoever under the subdivision improvement
agreement and the Surety Bonds and the terms, conditions covenants, and agreements
contained therein, shall be binding on Assignee.
4. Assignee shall complete all work, or cause the completion of all work, required under
the terms of the subdivision improvement agreement and secured by the Surety Bonds
within one (1) year of the date of Council approval of this Agreement.
5. In addition, Assignee agrees that it will file no actions,petitions, or complaints against
Assignor with regard to any facts or actions arising out of the subdivision
improvement agreement or the Surety Bonds prior to or after the execution of this
Assignment Agreement. It is specifically agreed that the agreement contained herein
is a full and final release from or related to the subdivision improvement agreement
and the Surety Bonds.
INDEMNIFICATION
1. Assignee shall indemnify and hold harmless Assignor against any and all loss, liability,
damage or expenses which may be incurred by Assignor due to any claims of a third
party in connection with the breach, default or non-performance of the subdivision
improvement agreement and the Surety Bonds by Assignee on or after the date of
execution of this Agreement.
GENERAL
1. Entire Agreement. This Agreement contains the entire understanding among the Parties
hereto with respect to the matters covered herein and supersedes and cancels any prior
understanding with respect to the matters covered herein.
z 755695.1 4
ASSIGNMENT AGREEMENT
Las Palmas Heights
2. Modification or Amendment. No changes, alterations or modifications hereto shall be
effective unless made in writing and signed by all the Parties.
3. Severability. If any provision of this Agreement shall be held to be invalid or
unenforceable for any reason, the remaining provisions shall continue to be valid and.
enforceable. If a court finds that any provision of this Agreement is invalid or
unenforceable, but that by limiting such provision it would become valid or enforceable,
then such provision shall be deemed to be written, construed and enforced as so limited.
4. Waiver of Contractual Rights. The failure of Parties to enforce any provision of this
Agreement shall not be construed as a waiver or limitation of that party's right to
subsequently enforce and compel strict compliance with every provision of this
Agreement.
5. Integration. The Parties expressly acknowledge and agree that this Agreement
constitutes a single, integrated written agreement expressing the intentions of the Parties
concerning the subject matter hereof. There is no other agreement, written or oral,
express or implied, between the Parties with respect to the subject matter hereof.
6. Governing Law. This Agreement shall be interpreted in accordance with and governed
in all respects by the laws of the State of California.
7. Effective Date. The Parties deem this Agreement to be effective as of the date of
execution by each of the Parties.
THIS AGREEMENT IS EXECUTED ON BEHALF OF ASSIGNOR AND BY ASSIGNEE
ON THE DATES SET FORTH BELOW:
DATED: , 2011. ASSIGNOR, THE CITY OF PALM SPRINGS
By:
(Signature)
(Print Name)
Title:
DATED: , 2011 ASSIGNEE, LAS PALMAS HEIGHTS
OWNERS ASSOCIATION
By:
(Signature)
(Print Name)
Title:
3 5
755695,1