HomeMy WebLinkAbout02331 - DESERT FLOWER PS PARTNERS SUBDIVISION SETTLEMENT PM20358 ASSIGNMENT OF CLAIMS AND INDEMNIFICATION AGREEMENT
This Assignment of Claims and Indemnification Agreement
( "Assignment") is entered into as of this day of August,
1995, by and between THE CITY OF PALM SPRINGS, a municipal
corporation ( "Assignor") , and PALM SPRINGS PARTNERS, a California
general partnership ( "Assignee" ) .
R E C I T A L S :
A. Assignor entered into that certain Subdivision
Improvement Agreement No. 2331, dated July 8, 1986 (the "SIA" ) with
Desert Flower Investments, a California limited partnership
( "Desert Flower") , whereby as a condition precedent to the approval
of Final Parcel Map 20358, Desert Flower agreed to construct
various public improvements (the "Improvements") more particularly
set forth in the SIA. To secure completion of the Improvements,
the SIA required Desert Flower to post a Faithful Performance Bond;
a Labor and Materials Bond; a Maintenance Bond; and a Monumentation
Bond (collectively, the "Bonds") . American Manufacturer' s Mutual
Insurance Company ( "Surety" ) is the surety under the Bonds. Copies
of the Bonds are attached hereto as Exhibit "A" .
B. After execution of the SIA, Desert Flower never fully
completed the Improvements . The Desert Flower Apartments (the
"Project" ) were subsequently acquired by the Resolution Trust
Corporation ( "RTC" ) . The RTC sold the Project to Assignee.
C. After Assignee acquired the Project a dispute arose
between Assignee and Assignor over whether Assignee and any
successors were required to complete the unfinished improvements .
To resolve the dispute, Assignor and Assignee entered into that
certain Settlement and Mutual General Release Agreement dated June,
1995 (the "Settlement Agreement" ) .
D. Pursuant to the Settlement Agreement, Assignee paid
Assignor Fifty-Eight Thousand Seven Hundred Eighty Dollars
($58, 780 . 00) for a release from any obligation to complete the
Improvements. Assignor reserved the right in its sole and absolute
discretion to determine whether to proceed against the Bonds.
Assignor has declined to proceed against the Bonds and in
accordance with the Settlement Agreement desires to assign its
rights as obligee under the Bonds, to the extent assignable, to
Assignee pursuant to the terms and conditions set forth below.
E. It is contemplated that Assignee may pursue legal action
to recover from Surety or other parties under the Bonds. Assignor
has no objection to such action by Assignee so long as Assignor
does not incur costs in defense of any claims or appearance in any
FS2\487\014084-0005\2157247.1 a08/17/95
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proceeding arising from this Assignment, and therefore looks to
Assignee for indemnity for any such costs.
AGREEMENT
NOW, THEREFORE, incorporating the foregoing recitals and in
consideration of the mutual covenants and conditions contained
herein, the parties hereto agree as follows :
1. Assignment of Claims . Assignor assigns all of its right,
title and interest as obligee under the Bonds to the extent
assignable under applicable law, together with any claims and
causes of action Assignor may have against Surety to recover on the
Bonds due to Desert Flower' s breach of the SIA. By virtue of this
Assignment, Assignor also assigns to Assignee, to the extent
assignable under applicable law, the full power to prosecute,
compromise, settle, reassign and give a release in full settlement
of the assigned rights, claims or causes of action.
2 . No Representations or Warranties . Assignor makes no
representations or warranties of any kind in connection with this
Assignment including, but not limited to, (i) the validity,
enforceability or effect of this Assignment, (ii) the merits of any
claim or cause of action that Assignor may have against the Surety,
or (iii) the applicability of any legal or equitable defenses that
the Surety may raise in response to any action or claim by Assignee
against Surety. Assignee hereby acknowledges that neither Assignor
nor any of its agents, representatives, or employees has made any
representation or warranty in connection with this Assignment .
3 . Indemnification. Assignee agrees to indemnify, defend
and hold Assignor, its agents, employees, representatives, and each
of them, harmless from and against any and all losses, damages,
obligations, claims, causes of action, rights, contentions,
demands, costs and expenses including, without limitation, court
costs and attorneys' fees to which Assignor may become subject
arising out of this Assignment or Assignor' s original position as
an obligee under the Bonds . Assignee' s obligation to indemnify
defend, and hold Assignor harmless under this Section 3 , includes,
but is not limited to, Assignor being named in any action, claim,
complaint, cross-complaint or counterclaim relating to the SIA, the
Bonds or this Assignment filed by the Surety, Desert Flower, or
Assignee.
4 . Judgment. Assignee shall pay any judgment against
Assignor its officers, agents or employees, including all costs
incurred in connection therewith, arising out of or in connection
with this Assignment or Assignor being named in any action, claim,
complaint, cross-complaint or counterclaim relating to the SIA, the
Bonds or this Assignment, within thirty (30) days of entry of
judgment.
FS2\487\014084-0005\2157247.1 a08/17195 -2-
5 . Defense of Claims . In the event Assignor, its officers,
agents or employees is made a party to any action, claim,
complaint, cross-complaint or counterclaim arising out of or in
connection with the SIA, the Bonds or this Assignment, Assignor may
hire, in its sole discretion, counsel of its choice, or tender its
claims and/or defenses to Assignee. In the event that Assignor
elects to hire its own counsel, Assignee agrees to pay to Assignor,
its officers, agents or employees, any and all costs and expenses
incurred by Assignor, its officers, agents or employees in such
action or proceeding, including but not limited to, legal costs and
attorneys' fees . In the representation of Assignor, Assignor' s
counsel may defend, prosecute, make appearences, filing pleadings
and take any other appropriate actions on behalf of Assignor.
6 . Termination. Assignee' s failure to expend the sums
required by Sections 3 through 5 of this Agreement on behalf of
Assignor shall constitute a default hereunder and Assignor may
elect terminate this Agreement in its sole and absolute discretion.
If Assignor elects to terminate this Agreement Assignee shall not
be released from any liability for Assignee' s default. Any monies
Assignee fails to pay to or on behalf of Assignor pursuant to this
Agreement shall bear interest from the date of default at the
maximum legal rate.
7. Attorneys' Fees . In the event any action is brought
between the parties hereto seeking enforcement of any of the terms
and provisions of this Assignment, the prevailing party in such
action shall be entitled to have and to recover from the other
party attorneys' fees and other expenses in connection with such
action or proceeding, in addition to its recoverable court costs .
8 . Successors and Assigns . This Assignment shall be binding
upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns .
9 . Governing Law. This Assignment shall be construed in
accordance with the laws of the State of California.
10 . Modifications . Any alteration, change or modification of
or to this Assignment, in order to become effective, shall be made
by written instrument or endorsement thereon and in each such
instance executed on behalf of each party hereto.
11. Integration. This .Assignment contains the entire and
exclusive understanding and agreement between the parties relating
to the matters contemplated hereby and all prior or contemporaneous
negotiations, agreements, understandings, representations and
statements, oral or written, are merged herein and shall be of no
further force or effect .
PS2\487\014084-0005\2157247.1 a08/17/95 -3-
12 . Counterparts . This Assignment may be executed in several
counterparts, and all so executed shall constitute one agreement
binding on all parties hereto, notwithstanding that all parties are
not signatories to the original or the same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment as of the date first written above.
ATTEST: CITY OF P RINGS, a
(/ munic ' al corpora i
ALL By:
C✓'p Clerk
City Manager
"Assignor"
APPROVED AS TO FORM:
Davik J. 'Aleshire,
City Attorney
PALM SPRINGS PARTNERS, a
California limited partnership
By: \�
Clyde � ��cow t .
Its: /ao u, ,.
By: Ok
y e C. Gr cc Jr.
I s:
F
"Assignee"
FS2\487\014084-0005\2157247.1 a08/17/95 -4-
EXHIBIT "A"
Copies of Bonds
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EXHIBIT "A"
PS2\487\014084-0005\2157247.1 a08/17/95
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Acceptance of this bond by the City of Palm Springs relieves American
Manufacturers Mutual Insurance Company of all liability under Bond
No. 3SN 651 713-00 , issued in behalf of Rattner Investments No. III,
dated Jurie—TU_._ITi83_.
CITY OF PALM SPRINGS BOND NO. 3SN 651 713-00
LABOR AND MATERIALS BOND PREMIUM: Included in
Performance Bond
WHEREAS, the City_Counci1_of_.tbe_.City_of Palm Springs , State of California,
and DESERT FLOWER INVESTMENTS, a California limited partnership
(hereinafter designated as "principal ") have entered into an agreement whereby
principal agrees to install and complete certain designated public improvements ,
which said a�reem�nt, d �� 19_, and indentified as project
arce Map is hereby referred to and
made a part hereof; and
WHEREAS, under the terms Of said agreement, principal is required before
entering upon the performance of the work, to file a good and sufficient payment
bond with the City of Palm Springs to secure the claims to which reference is
made in Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the
Civil Code of the State of California.
NOW, THEREFORE, said principal and the undersigned as corporate surety, are
held firmly bound unto the City of Palm Springs and all contractors , subcontract-
ors , laborers , materialmen and other persons employed in the performance of the
aforesaid agreement and referred to in the aforesaid Civil Code in the sum of
Ninety-seven thousand five hundred and fifty-four Dollars
97,554. , for materials furnished or labor thereon of any kind, or for amounts
due under the Unemployment Insurance Act with respect to such work or labor, that
said surety will pay the same in an amount not exceeding the amount hereinabove
set forth, and also in case suit is brought upon this bond, will pay, in addition
to the face amount thereof, costs and reasonable expenses and fees , including
reasonable attorney's fees, incurred by the City in successfully enforcing such
obligation, to be awarded and fixed by the court, and to be taxed as costs and to
be included in the judgment therein rendered.
It is hereby expressly stipulated and agreed that this bond shall inure to
the benefit of any and all persons , companies and corporations entitled to file
claims under Title 15 (commencing with Section 3082) of Part 4 of Division 3 of
the Civil Code, so as to give a right of action to them or their assigns in any
suit brought upon this bond.
Should the condition of this bond be fully performed, then this obligation
shall become null and void; otherwise it shall be and remain in full force and
effect.
The surety hereby stipulates and agrees that no change, extension of time,
alteration or addition to the terms of said agreement or the specifications
accompanying the same shall in any manner affect its obligations on this bond,
and it does hereby waive notice of any such change, extension, alteration or
addition.
IN WITNESS WHEREOF, this instrument has been duly executed by the principal
and surety above named, on June 27 19 86 .
DESERT FL WER INVESTMENTS,
a Canfor/rnw limited p )),tner's'
laipl -- -_
AMERICAN MANUFACTURERS MIJ_fUAC- -
By: �Al' P, ''� � � '' z � � INSURANCE COMPANY =
Y Principal Surety -
BY
Attorney-in-Fact
IJ. R. Evans
P.O. Box 7714
Burbank, CA 91510
ENG. EF 7
9177
_.r
ATTORNEY-IN-FACT
State of California
County of Los Angeles ss:
On June 27, 1986 , before me, a Notary Public, personally appeared
N. R. Evans , personally known to me(or proved to me on the basis of
satisfactory evidence) to be the person who executed this instrument as Attorney-in-Fact of
AMERICAN MANUFACTURERS MUTUAL
INSURANCE COMPANY the
corporation therein named and acknowledged to me that the corporation executed it. ,, ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,,..m,
`IN WITNESS WHEREOF,1 have hereunto set my hand and affixed OFFICIAL SEAL
'R Bronwyn Murdock
:y � _
my official seal, the day and year stated in this certificate above.
Notary Public -California
%`y f F Los Angeles County
, �aop /„'✓��„�yf' I f .a,u„MyCammissian EKpiresApr,29,197i8
„.i„..„.,��„���„�„��,,,..i,i,........„.„8
This area%or O%%;eal Noten tal Seal
State of On this the c 7� day of t%z-� - 19 r�, before me,
SS.County of Jam^ 1� } the undersigned Notary Public, personally appeared
known to me to be the person(s) whose name(s) subscribed
to the within instrument and acknowledged that /L
,t,,4 ¢orFrvcn aaso executed the same for the purposes therein contained.
LEONA X NATF9AN
�� NOTARY Njaue-eALFMNIA IN WITNESS WHEREOF, I hereunto set my hand and official seal.
�z LOS ANGELr CgUN'o f
lKx tKy Commgmbn Expire June 3Q,99t;6 ,
GENERAL ACKNOWLEDGEMENT FORM
Acceptance of this A by the City of Palm Springs eves American
Manufacturers Mutual Insurance Company of all liability under Bond
No. 3SN 651 713-00 , issued in behalf of Rattner Investments No. 111,
dated June I0,fJ
CITY OF PALM SPRINGS BOND NO. 3SN 651 713-00
FAITHFUL PERFORMANCE BOND PREMIUM: $3,512.00
WHEREAS, the City Council of the City of Palm Springs , State of California,
and DESERT FLOWER INVESTMENTS, a California limited partnership
(hereinafter designated as "principal " have entered into an agreement whereby
principal agrees to install and complete certain designated public improvements,
which said agreement, dated JUL r VY'& 19 , and identified as project
Parcel Map 20358 is hereby referred
to and made a part hereof; and
WHEREAS, said principal is required under the terms of said agreement to
furnish a bond for the faithful performance of said agreement.
MERICAN
NOW, THEREFORE, we, the principal and INSURANCEMCOMPANYURERS MUTUAL
as surety, are held firmly bound unto the Lit f Palm Spri s he einafter called,
("City") , in the penal sum of One-hundred ant f�inety-five h�otl San c�,one-hundred and seven
dollars ($ 195,107) lawful money of the United States , for the payment of which
sum well and truly to be made, we bind ourselves , our heirs, successors, executors
and administrators , jointly and severally, firmly by these presents .
The condition of this obligation is such that if the above bounded principal ,
his or its heirs, executors , administrators, successors or assigns, shall in all
things stand to and abide by, and well and truly keep and perform the covenants ,
conditions and provisions in the said agreement and any alteration thereof made
ATTORNEY-IN-FACT
State of California
County of Los Angeles ss:
On June 27 1986 , before me, a Notary Public, personally appeared
N. R. Evans , personally known to me(or proved to me on the basis of
satisfactory evidence) to be the person who executed this instrument as Attorney-in-Fact of
AMERICAN MANUFACTURERS MUTUAL
INSURANCE COMPANY the .,, ,....„.........,..„...„,,,,,,,,,,,,,,,,,,„..„....
corporation therein named and acknowledged to me that the corporation executed it. ` OFFICIAL SEAL
Bronwyn Murdock ;
IN WITNESS WHEREOF, I have hereunto set my hand and affixed �mt Notary Public -California
` my official seal, the day and year stated in this certificate above. Los Angles County
My commission ExphesApr.29,1988 '
1� .vyPubl¢ /
This urea for Offiral Notarial Seal
L
C
AMERICAN MANUFACTURERS MUTUAL-
INSURANCE COMPANY
Principal Surety - -
Attorney-in-Fact
N. R. Evans
P.O. Box 7714
ENG. EF 6 Burbank, CA 91510
9-15-77
r
P.S. Partners -Settle & Mutual
Gen Release Agr-Subdiv Impr
Agr w/Desert Flower-PM20358
AGREEMENT #2331A
R18658, 7-5-95
SETTLEMENT AND MUTUAL GENERAL RELEASE AGREEMENT
THIS SETTLEMENT AND MUTUAL GENERAL RELEASE AGREEMENT (this
"Agreement" ) is entered into as of this :LI day of June, 1995, by
and between the CITY OF PALM SPRINGS, a municipal corporation (the
"City" ) , and PALM SPRINGS PARTNERS, a California general
partnership ( "PS Partners" ) .
R E C I T A L S :
A. The City entered into Subdivision Improvement Agreement
No. 2331, dated July 8, 1986 (the "SIA" ) with Desert Flower
Investments, a California limited partnership ( "Desert Flower" ) ,
whereby as a condition precedent to the approval of Final Parcel
Map 20358 , Desert Flower agreed to construct various public
improvements (the "Improvements" ) more particularly set forth in
the SIA. To secure completion of the Improvements, the SIA
required Desert Flower to post a Faithful Performance Bond in the
amount of $195 , 107 . 00 ; a Labor and Materials Bond in the amount of
$97, 554 . 00 ; a Maintenance Bond in the amount of $29 , 266 . 00 ; and a
Monumentation Bond in the amount of $2 , 700 . 00 (collectively, the
"Bonds" ) . American Manufacturer' s Mutual Insurance Company
( "Surety" ) is the surety under the Bonds .
B. After execution of the SIA, Desert Flower experienced
financial difficulty and never fully completed the Improvements .
The Desert Flower Apartments (the "Project") were subsequently
acquired by the Resolution Trust Corporation ( "RTC" ) . The RTC sold
the Project to PS Partners . PS Partners is currently in Escrow
(the "Escrow" ) to sell the Project to Mountain Meadows Associates .
C. During the pending sale, the City informed Mountain
Meadows Associates that upon acquisition of the Project it must
complete the Improvements required by the SIA. A dispute
subsequently arose between the City and PS Partners over whether
PS Partners and its successors-in-interest were obligated to
complete the Improvements . PS Partners asserted that the City
would be liable for damages if Mountain Meadows Associates
cancelled the Escrow as a result of the City' s insistence that PS
Partners and its successors were obligated to construct the
Improvements called for by the SIA.
D. By this Agreement, the parties hereto desire to resolve
and settle all differences and disputes concerning PS Partners and
its successors obligations under the SIA and the City' s liability
for any act, omission, or representation relating to the SIA and
construction of the Improvements .
FS2\487\014084-0005\2152129.1 .06/26195 �A
NOW, THEREFORE, incorporating the foregoing Recitals and in
consideration of the mutual covenants and conditions herein
contained, the parties hereto agree as follows :
1. Description of Settlement. In full and complete
satisfaction of PS Partners and its successors' obligation to
construct the Improvements as required by the SIA, and for PS
Partners release of the City for liability arising from any act,
omission or representation relating to the SIA and completion of
the Improvements, the parties hereby agree as follows :
(a) Payment for Improvements . Within two (2) days of
execution of this Agreement, PS Partners shall pay FIFTY EIGHT
THOUSAND SEVEN HUNDRED EIGHTY DOLLARS ($58 , 780 . 00)
( "Settlement Payment" ) to the City so that the City may
oversee completion of the public Improvements required by the
SIA and any improvements reasonably required by the City
Engineer. The City may decide in its sole and absolute
discretion how construction of the Improvements will be
performed. The City agrees to refund to PS Partners any t
remaining sum of the Settlement Payment that is not applied
toward construction of the Improvements within four (4) years
from the date the City receives payment pursuant to this
paragraph.
(b) Pursuit of Bonds . As a condition to receiving
payment from PS Partners as set forth in Section 1 (a) above,
the City agrees to evaluate whether it will pursue recovery
against the Bonds for the Improvements not completed by Desert
Flower. Notwithstanding anything to the contrary in this
paragraph, the City is entitled to exercise its sole and
absolute discretion in determining whether to proceed against
the Bonds . The City shall have no obligation to take any
action to recover against the Bonds . If the City decides to
pursue recovery against the Bonds, the City may terminate any
such pursuit at any time in its sole and absolute discretion.
If the City decides to proceed against the Bonds,
and is successful in obtaining reimbursement from the Surety,
the City shall first be entitled to the Bond proceeds to the
extent that its actual cost in completing the Improvements
exceeds the amount of the Settlement Payment . In the event
any Bond proceeds remain after the City is reimbursed for its
share of the Bond proceeds, PS Partners shall be entitled to
reimbursement from the Bond Proceeds up to the amount of the
Settlement Payment.
If the City declines to proceed against the Bonds,
the City will notify PS Partners and agrees to assign its
rights as obligee under the Bonds to PS Partners to the extent
allowable by law. The City makes no representations to PS
Partners regarding its rights to recover against the Bonds .
In exchange for such assignment, PS Partners agrees to execute
A52\487\014084-0005\2152129.1 06/26195 -2- I
an indemnification and hold harmless agreement in favor of the
City indemnifying the City for all costs (including attorneys'
fees) and liability in the event PS Partners seeks to pursue
recovery on the Bonds . Such indemnification agreement shall
be in a form approved by the City.
(c) Compliance with SIA. Upon PS Partners' execution of
this Agreement and payment of the sum set forth in Section
l (a) above, PS Partners is deemed to have performed all of the
obligations required by the SIA. The City agrees not to assert
any claim against PS Partners (as more specifically set forth
in Section 2 (a) below) or its successors or transferees for
construction of the Improvements required by the SIA or
required as preconditions to issuance of the tenative parcel
map or Parcel Map 20358 . Such public Improvements include,
without limitation, widening of Highway 111 to permit turnoff
onto Farrell Drive; installation of sidewalks, landscaping,
curb, gutter and paving; relocation of the traffic signal at
the intersection of Highway Ill and Farrell Drive; and
undergrounding of utilities . This Agreement shall not impact
the City' s right to require future approvals in connection
with the Project which are unrelated to the Improvements
required by the SIA and Parcel Map 20358 .
2 . Mutual Releases . As material consideration for each
party' s willingness to enter into this Agreement, each party agrees
as follows :
(a) City, for itself, its successors-in-interest,
assigns, employees, and agents, hereby releases, waives,
abandons and forever discharges PS Partners and its executors,
administrators, successors-in-interest, partners, assigns,
employees, agents, officers, directors, personal
representatives and predecessors-in-interest from any and all
actions, suits, liens, claims, counterclaims, losses, rights,
demands, debts, costs, contracts, agreements, promises,
liabilities, obligations, damages, controversies, causes of
action, loss of services, expenses and compensation of any
kind or nature whatsoever, in law or in equity, known or
unknown, fixed or contingent, including without limitation,
attorneys' fees and costs, which City may have had or claim to
have had, or now have or claim to have, or hereafter may have
or assert to have, on account of, or by reason of, or in any
way growing out of or resulting from, the obligations of
PS Partners and its predecessors-in-interest to construct the
Improvements as required by the SIA or required as
preconditions to issuance of the tenative parcel map or Parcel
Map 20358 . The release set forth hereinabove shall not
release any party from any claim arising out of a violation of
this Agreement .
(b) PS Partners, for itself, its heirs, executors,
administrators, successors-in-interest, partners, assigns,
PS2\487\014084-0005\2152129.1 a06/26/95 -3-
employees, agents, attorneys, personal representatives and
predecessors-in-interest hereby release, waive, abandon and
forever discharge the City and its assigns, employees, agents,
officers, directors, and predecessors-in-interest from any and
all actions, suits, liens, claims, counterclaims, losses,
rights, demands, debts, costs, contracts, agreements,
promises, liabilities, obligations, damages, controversies,
causes of action, loss of services, expenses and compensation
of any kind or nature whatsoever, in law or in equity, known
or unknown, fixed or contingent, including without limitation,
attorneys' fees and costs, which PS Partners may have had or
claims to have had, or now have or claims to have, or
hereafter may have or assert to have, on account of, or by
reason of, or in any way growing out of or resulting from any
act, omission or representation by the City relating to the
SIA or completion of the Improvements . The release set forth
hereinabove shall not release any party from any claim arising
out of a violation of this Agreement .
3 . Release of Unknown Claims . Each party to this Agreement
expressly understands and acknowledges that it is possible that
unknown losses or claims exist or that present losses may have been
underestimated in amount or severity, and each said party
represents and warrants that this uncertainty was taken into
account in determining the consideration to be paid for the giving
of this Agreement, and that a portion of said consideration having
been bargained for between the parties with the knowledge of the
possibility of such unknown claims was given in exchange for full
accord, satisfaction and discharge of all such claims in connection
with the dispute set forth in this Agreement . The City and
PS Partners specifically acknowledge that they are familiar with
the provisions of California Civil Code Section 1542 which provides
as follows :
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH
THE DEBTOR. "
The City and PS Partners, being aware of said code section and
represented by counsel, hereby expressly waive any right they may
have under said code section, as well as under any other statutes
or common law principles of similar effect. Notwithstanding
anything to the contrary herein, the General Release in this
Section is limited to the dispute between the parties described in
this Agreement.
4 . No Prior Assignment . The parties warrant that none of
the claims or causes of action covered hereby have been sold,
assigned, transferred, or otherwise set over, in whole or in part,
to any other person or entity, and that they have the sole right
and exclusive authority to execute this Agreement, and each party
F82\487\014084-0005\2152129.1 a06/26/95 -4-
i •
agrees to indemnify, defend and hold harmless the other parties for
any claims advanced in contravention of this warranty.
S . Representation by Counsel . Each party to this Agreement
hereby confirms and admits that it has read and understands this
Agreement, that it has been fully advised and represented by
counsel with respect to this Agreement and all negotiations giving
rise to this Agreement, that it has fully discussed this Agreement
and all of its terms, consequences and ramifications with its
respective counsel .
6 . Further Cooperation. The parties agree to execute,
acknowledge, if appropriate, and deliver any document and cooperate
in performing any acts in any reasonable manner to effect or
implement the terms and conditions of this Agreement .
7 . Authority to Execute. This Agreement is entered into by
the undersigned parties freely and voluntarily, and without duress
or coercion. Each individual executing this Agreement on behalf of
an entity represents and warrants that he or she is duly authorized
to execute and deliver this Agreement on behalf of such entity and
that this Agreement is binding upon such entity in accordance with
its terms .
8 . Successors and Assigns . This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns .
9 . Integration. This Agreement and other documents
expressly incorporated herein by reference contain the entire and
exclusive understanding and agreement between the parties relating
to the matters contemplated hereby and all prior or contemporaneous
negotiations, agreements, understandings, representations and
statements, oral or written, are merged herein and shall be of no
further force or effect.
10 . Modifications . Any alteration, change or modification of
or to this Agreement, in order to become effective, shall be made
by written instrument or endorsement thereon and in each such
instance executed on behalf of each party hereto.
11. Severability. If any term, provision, condition or
covenant of this Agreement or the application thereof to any party
or circumstances shall, to any extent, be held invalid or
unenforceable, the remainder of this instrument, or the application
of such term, provision, condition or covenant to persons or
circumstances other than those as to whom or which it is held
invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
12 . Interpretation. This Agreement shall be construed
according to its fair meaning and as if prepared by both parties
MW87\014084-0005\2152129.1 ZL06/26/95 -5-
hereto. Titles and captions are for convenience only and shall not
constitute a portion of this Agreement .
13 . Governing Law. This Agreement shall be construed in
accordance with the laws of the State of California.
14 . Attorneys' Fees . Except as otherwise expressly provided
herein, each party shall be responsible for its own costs and fees
incurred in connection with the dispute discussed above and in
connection with the preparation and execution of this Agreement .
In the event any action is brought between the parties hereto
seeking enforcement of any of the terms and provisions of this
Agreement, the prevailing party in such action shall be entitled to
have and to recover from the other party attorneys' fees and other
expenses in connection with such action or proceeding, in addition
to its recoverable court costs .
15 . No Waiver. No delay or omission by either party hereto
in exercising any right or power accruing upon the compliance or
failure of performance by the other party hereto under the
provisions of this Agreement shall impair any such right or power
or be construed to be a waiver thereof. A waiver by either party
hereto of a breach of any of the covenants, conditions or
agreements hereof to be performed by the other party shall not be
construed as a waiver of any succeeding breach of the same or other
covenants, agreements, restrictions or conditions hereof .
16 . Execution in Counterpart . This Agreement may be executed
in several counterparts, and all so executed shall constitute one
agreement binding on all parties hereto, notwithstanding that all
parties are not signatories to the original or the same
counterpart .
17 . Notices . Any notice which either party may desire to
give to the other party must be in writing and may be given by
personal delivery, by mailing the same by registered or certified
mail, return receipt requested, postage prepaid, or by Federal
Express or other reputable overnight delivery service, to the party
to whom the notice is directed at the address of such party
hereinafter set forth, or such other address and to such other
persons as the parties may hereafter designate. Any such notice
shall be deemed given upon receipt if by personal delivery, forty-
eight (48) hours after deposit in the United States Mail, if sent
by mail pursuant to the foregoing, or twenty-four (24) hours after
timely deposit with a reputable overnight delivery service.
FS2\487\014084-0005\2152129.1 a06/26/95 -6-
/ t
��7
The City: City of Palm Springs
3200 E. Tahquitz Canyon
Palm Springs, CA 92263-2743
Attn: City Manager
Copy to: Rutan & Tucker
611 Anton Blvd.
Suite 1400
Costa Mesa, CA 92626-1998
Attn: David J. Aleshire, Esq.
PS Partners : Palm Springs Partners
750 "B" Street, Suite 2740
San Diego, CA 92101
Attn: Clyde C. Greco, Jr. , Esq.
Copy to: Palm Springs Partners
4737 Sonoma Highway
P.O. Box 11427
Santa Rosa, CA 95406
Attn: Mr. Clyde C. Greco, Sr.
IN WITNESS WHEREOF, the parties hereto have executed this
Settlement and Mutual General Release Agreement as of the date
first above written.
PALM Non' a
GS PARTNERS, a
Cali limited partnership
By:
C.
Its:
"PS Partners"
ATTEST: CITY 0 PALM SPR GS, a
muni ipal corpora i n
By:
City Manager
IT City"
APPROVED AS TO FORM:
F52\487\014084-0005\2152129.1 106/26/95 -7-
Desert Flower Investments
Subdiv Impr Agr for PM 20358
AGREEMENT #2331
R15931, 6-18-86
CITY OF PALM SPRINGS
SUBDIVISION IMPROVEMENT AGREEMENT
THIS AGREEMENT, made and entered into this day of JUL 19
by and between 4esP_r_t r t A 1 ' t P rtnershi
hereinafter collectively referred to as Subdivider and CITY OF PALM PRINGS, a
municipal corporation , of the State of California, hereinafter referred to as "CITY" ;
WITNESSETH:
WHEREAS , Subdivider has prepared and filed a final subdivision map of Parcel
No. 20358 in the City of Palm Springs , County of Riverside, for approval
by City; and
WHEREAS , as a condition precedent to the approval of said map by City, Sub-
divider is required to Offer for dedication those parcels of land intended for
streets , highways and other public use, and also to construct and install or agree
to construct and install certain improvements ; and
WHEREAS , Subdivider, by said map, has offered for dedication to City for public
use the streets and easements shown on said map; and
WHEREAS, City desires to accept the streets and easements shown on said map for
public use, and certain other such improvements ; and
WHEREAS, as a condition precedent to the acceptance of the dedication of such
streets and easements by City, Subdivider is required to enter into an agreement
with the City to construct certain improvements ; and
WHEREAS , the total cost of such improvements has been estimated by the City
Engineer to be approximately $ 195,107.00
,
NOW, THEREFORE, IT IS AGREED by and between the parties hereto as follows :
1 . Subdivider, at his sole cost and expense, shall construct and install the
street, drainage, domestic water, sanitary sewer and other improvements required to
be constructed or agreed to be constructed as a condition precedent to the approval
of said final map and acceptance of such streets and easements , as shown on the
"Improvement Plans for Parcel Map 20358 " , a copy of which is now on file in the
office of the City Engineer of the City and which is referred to and incorporated
herein as though set forth in full .
2. Subdivider shall furnish to City good and sufficient bonds executed by a
corporation authorized to transact surety business in the State of California on
forms approved by City, one bond in the sum of $ 195 107 00 to assure the
bond in the sum Of ,
faithful performance of this Agreement, and one
to assure payment of the cost of the labor and materials for the impr 97 improvements
554.00
required to be constructed or installed hereby.
Both of said bonds shall be deemed exonerated upon acceptance by the City of
the improvements. The developer shall furnish a maintenance bond at the time of
execution of this agreement in the amount of $ 29,266.00 which shall
remain in effect for a period of one year from date of acceptance of the improve-
ments .
3. Before final approval of street improvements , the subdivider will place
survey monuments in accordance with the provisions of the State Subdivision Map
Act avid the Subdivision Ordinance of the City of Palm Springs as shown on the Tract
Map.
The Subdivider, after setting the monuments , shall furnish the City Engineer
of the City of Palm Springs , written notice of the setting said monuments and
written proof of having paid the engineer or surveyor for the setting of said
monuments , or as provided for in the Subdivision Map Act.
Subdivision Improvement Agreement
Page 2
4. In accordance with the terms of said subdivision regulation aforesaid ,
the subdivider does hereby agree to furnish a good and sufficient bond in the
amount of $ 2,700.00 to guarantee payment of the cost of setting monuments
as stated in Item No. 2 of this agreement.
5. The City Engineer or his duly authorized representative, upon written
request of Subdivider, shall inspect the improvements herein agreed to be con-
structed and installed by Subdivider, and, if determined to be in accordance
with the applicable City standards, shall recommend the acceptance of such
improvements by the City.
6. Subdivider shall complete such improvement plans including any correc-
tions and revisions thereto necessary to comply with the applicable City
standards as determined by the City Engineer, within thirty (30) days after
approval of the final map.
7. Subdivider shall perform any changes or alterations in the construc-
tion and installation of such improvements required by City, provided that all
such changes or alterations do not exceed 10 percent of the original total
estimated cost of such improvements.
8. Subdivider shall guarantee such improvements for a period of one
year following the completion by Subdivider, and acceptance by City, against
any defective work or labor done, or defective materials furnished, in the
performance of this Subdivision Improvement Agreement by Subdivider and shall
repair or replace any such defective work or materials discovered during said
one year period.
9. Subdivider shall commence the construction and installation of such
improvements within thirty (30) days from the approval of such "Improvement
Plans for Parcel Map 20358 " by the City Engineer, and shall complete
such construction and installations within nine (9) months from such date of
commencement,
10. In the event that Subdivider fails to perform any obligation hereunder,
Subdivider authorizes City to perform such obligation twenty (20) days after
mailing written Notice of Default to Subdivider at the address given below,
and agrees to pay the entire cost of such performance by City.
11 . In the event that Subdivider fails to perform any obligation hereunder,
Subdivider agrees to pay all costs and expenses incurred by City in securing
performance of ,jch obligations, including costs of suit and reasonable attorney' s
fees.
12. Subdivider hereby binds itself, its executors, administrators and
assigns, and agrees to indemnify, defend, and hold the City harmless from any
losses , claims, demands, actions or causes of action of any nature whatsoever,
arising out of or in any way connected with the improvements agreed to be
constructed and installed hereunder by the Subdivider, including costs of suit
and reasonable attorney' s fees.
Subdivision Improvement Agreement
Page 3
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
SUBD VI, R: Desert F1 er st ents
� A �ra � reship
By:
> nn th Ra /
By: ✓
Pa 1 Greenwood
4045 E. Thousand Oaks Boulevard, Suite #235
Address
Westlake Village, Ca. 91362
City
CITY OF PALM SPRINGS, CALIFORNIA
\ J City Clerk City Manager
REVIEWED & APPROVED :�i On this the �Z Z c�`day of1�," - 19 ,]bee
State ofL'��`�
5S' eared
County ofJc� 'T the undersigned Notary Public, personally appeared
f�. .C.f.r's✓ _
Lek o-
known to me to be the person(s) whose name(s) �t"u to the within instrument and acknowledged that
executed the same for the purposes therein contained.
LMM LA.NAYNAN
IN WITNESS WHEREOF, I hereunto set my hand and o
NIA
LOS ANC 0 Et COUNTY
'� ",
GENERAL ACKNOWLEDGEMENT FORM