HomeMy WebLinkAboutRES 2022-079RESOLUTION NO. 2022-79
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, APPROVING THE FINAL SUBDIVISION MAP OF
TRACT NO. 37506-2
WHEREAS, Tract Map conforms to the requirements of the Subdivision Map Act
and City Ordinances; and
WHEREAS, the Final Subdivision Map of Tract 37506-2, has met the Conditions
of Approval for this project.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm
Desert, California, as follows:
SECTION 1. That the foregoing Recitals are true and correct and are incorporated
herein by this reference.
SECTION 2. The Final Subdivision Map of Tract 37506-2, City of Palm Desert,
California, is hereby approved as the official map of said tract, subject to the conditions
of the Tentative Map.
SECTION 3. The Director of Development Services is directed to process the
Tract Map for recording upon receipt of the required payment of all fees and receipt of all
necessary agreements.
ADOPTED ON SEPTEMBER 15, 2022.
JAN C. HARNIK
MAYOR
ATTEST:
ANTHONY J. MEJIA
CITY CLERK
Anthony Mejia (Sep 23, 2022 14:14 PDT)
Resolution No. 2022-79 Page 2
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, hereby certify that
Resolution No. 2022-79 is a full, true, and correct copy, and was duly adopted at a regular
meeting of the City Council of the City of Palm Desert on September 15 by the following
vote:
AYES: JONATHAN, KELLY, NESTANDE, QUINTANILLA, AND HARNIK
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
RECUSED: NONE
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the
City of Palm Desert, California, on __________________.
ANTHONY J. MEJIA
CITY CLERK
Anthony Mejia (Sep 23, 2022 14:14 PDT)
Sep 23, 2022
MSA JOB # 2497
June 27, 2022
ENGINEER'S OPINION OF PROBABLE COST FOR
PHASE 2 ROUGH GRADING IMPROVEMENTS
Southeast Corner of Portola Avenue and Geral Ford Drive
in the City of Palm Desert
Tract No. 37506
Prepared for:
Project Location:
University Park Investor, LLC
3875 Hopyard Road
Pleasanton CA 94588
Page 1 of 3
DESCRIPTION UNIT QUANTITY UNIT COST TOTAL COST
Earthwork
Raw Cut CY 107,453 $5.00 $537,265.00
Over-Excavation CY 104,718 $2.00 $209,436.00
Import CY 71,588 $5.00 $357,940.00
TOTAL OF EARTHWORK
IMPROVEMENTS $1,104,641.00
DESCRIPTION UNIT QUANTITY UNIT COST TOTAL COST
Demolition
Remove and Dispose of
Existing Fence LF 2,463 $5.00 $12,315.00
TOTAL OF DEMOLITION
IMPROVEMENTS $12,315.00
DESCRIPTION UNIT QUANTITY UNIT COST TOTAL COST
Rough Grading
Costruct Garden Wall (By
Separate Permit) Structural
Calculations and Design by
Others LF 1,804 $60.00 $108,240.00
Construct Combination
Garden/Retaining Wall (By
Separate Permit) Structural
Calculations and Design by
Others LF 548 $100.00 $54,800.00
Construct Retaining Wall (By
Separate Permit) Structural
Calculations and Design by
Others LF 3,273 $120.00 $392,760.00
Construct Earthen Swale Per
Detail on Sheet No. 3 LF 3,960 $5.00 $19,800.00
Construct 12" Thick (Min.) x 8"
Nominal Grouted Rip-Rap Weir
Outlet per Detail on Sheet 13 EA 1 $30,000.00 $30,000.00
ON SITE IMPROVEMENTS
Page 2 of 3
Construct 6-foot Tubular Steel
View Fence atop Existing
Retaining Wall LF 1,025 $60.00 $61,500.00
TOTAL OF ROUGH GRADING
IMPROVEMENTS $667,100.00
Assumptions:
1.
2 Earthwork associated with the public parks is included in this estimate.
DESCRIPTION TOTAL COST
On Site Improvements
Earthwork $1,104,641.00
Demolition $12,315.00
Rough Grading $667,100.00
SUBTOTAL OF ALL IMPROVEMENTS $1,784,056.00
15% CONTINGENCY $267,608.40
TOTAL $2,051,664.40
1
2 MSA Consulting Inc. makes no representation concerning the estimated
quantities and cost figures other than that all such figures are opinions only and
the Engineer shall not be responsible for any fluctuations in cost factors or the
actual quantities shown.
The above opinion does not include raw land, legal fees, agency permits,
professional engineering fees, construction phasing, bonds, financing/carrying
costs, construction staking, soils testing, accounting or construction
management.
SUMMARY
These quantities are based on the Rough Grading Plan comments received on
6/23/2022.
Page 3 of 3
SUBDIVISION IMPROVEMENT AGREEMENT
DATE OF AGREEMENT: __________________________ , 20____
NAME OF SUBDIVIDER: University Park Investor, LLC
(Referred to as "SUBDIVIDER").
NAME OF SUBDIVISION: Tract Map No. 37506-2 No. of Lots: 201
(Referred to as “SUBDIVISION”)
For complete legal description see Exhibit “B” attached hereto.
TENTATIVE MAP RESOLUTION OF APPROVAL NO.: 2745 (TM No: 37506)
(Referred to as "Resolution of Approval")
IMPROVEMENT PLANS APPROVED ON:__________________________________
(Referred to as Improvement Plans)
ESTIMATED TOTAL COST OF IMPROVEMENTS: $ 2,331,546.00
(excluding park improvements)
ESTIMATED TOTAL COST OF MONUMENTATION: $51,000
SURETY:
BOND NOS:___________________________________________________
SURETY:_____________________________________________________
-OR-
IRREVOCABLE STAND-BY LETTER OF CREDIT NO.__________________
FINANCIAL INSTITUTION:________________________________________
-OR-
CASH/CERTIFICATE OF DEPOSIT, AGREEMENT DATED:_____________
FINANCIAL INSTITUTION:___________________________
revised 1-27-2022 - 2 -
This Agreement is made and entered into by and between the City of Palm
Desert, a municipal corporation of the State of California, hereinafter referred to as
"CITY", and the SUBDIVIDER.
RECITALS
A. SUBDIVIDER has presented to CITY for approval and recordation, a final
subdivision map of a proposed SUBDIVISION pursuant to provisions of the
Subdivision Map Act of the State of California and the CITY's ordinances and
regulations relating to the filing, approval and recordation of subdivision maps. The
Subdivision Map Act and the CITY's ordinances and regulations relating to the filing,
approval and recordation of subdivision maps are collectively referred to in this
Agreement as the "Subdivision Laws."
B. A tentative map of the SUBDIVISION has been approved, subject to the Subdivision
Laws and to the requirements and conditions contained in the Resolution of
Approval. The Resolution of Approval is on file in the Office of the City Clerk and is
incorporated into this Agreement by reference.
C. The Subdivision Laws establish as a condition precedent to the approval of a final
map that SUBDIVIDER must have complied with the Resolution of Approval and
must have either (a) completed, in compliance with CITY standards, all of the
improvements and land development work required by the Subdivision Laws or the
Resolution of Approval or (b) have entered into a secured agreement with CITY to
complete the improvements and land development within a period of time specified
by CITY. The required grading work is subject to a separate secured agreement
between SUBDIVIDER and CITY (i.e., Grading Only Agreement), and the required
park improvement work is subject to a separate secured agreement between
SUBDIVIDER and CITY (i.e., Parks Improvement Agreement).
D. In consideration of the approval of a final map for the SUBDIVISION by the City
Council, SUBDIVIDER desires to enter into this Agreement, whereby SUBDIVIDER
promises to install and complete, at SUBDIVIDER's own expense, all the public
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improvement work required by CITY in connection with the proposed
SUBDIVISION. SUBDIVIDER has secured this Agreement by improvement
security required by the Subdivision Laws and approved by the City Attorney.
E. Complete Improvement Plans for the construction, installation, and completion of
the improvements have been prepared by SUBDIVIDER and approved by the City
Engineer. As used in this Agreement, “City Engineer” means the Acting City
Engineer of CITY, or if there is no City Engineer, then such other CITY official then
performing the functions of 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.
F. 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 Page 1 of this Agreement. The basis for the
estimate is attached as Exhibit "A" to this Agreement.
G. 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.
H. All street signs, and stakes as specified on the final map are to be completed prior
to final formal acceptance by the City Council. All public improvement monuments
and Individual property monuments must be installed within one year from the
formal final Council acceptance of said SUBDIVISION.
I. SUBDIVIDER recognizes that by approval of the final map for SUBDIVISION, CITY
has conferred substantial rights upon SUBDIVIDER, including the right to sell,
lease, or finance lots within the SUBDIVISION. As a result, CITY will be damaged
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to the extent of the cost of installation of the improvements by SUBDIVIDER's failure to
perform its obligations to commence construction of the improvements by the time
established in this Agreement. CITY shall be entitled to all remedies available to it
pursuant to this Agreement and law in the event of a default by SUBDIVIDER. It is
specifically recognized that the determination of whether a reversion to acreage or
rescission of the SUBDIVISION constitutes an adequate remedy for default by the
SUBDIVIDER shall be within the sole discretion of CITY.
NOW, THEREFORE, in consideration of the approval and recordation by the City
Council of the final map of the SUBDIVISION, SUBDIVIDER and CITY agree as follows:
1. SUBDIVIDER's Obligation to Construct Improvements.
SUBDIVIDER shall:
a. Comply with all the requirements of the Resolution of Approval, and
any amendments thereto, and with the provisions of the Subdivision
Laws.
b. Complete at SUBDIVIDER'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; provided however, that the improvements shall not
be deemed to be completed until accepted by City Council as
provided in Section (17) herein.
c. Furnish the necessary materials for completion of the public
improvements in conformity with the Improvement Plans.
d. Acquire, or pay the cost of acquisition by CITY, and dedicate all rights-
of-way, easements and other interests in real property for
construction and installation of the public improvements, free and
clear of all liens and encumbrances. The SUBDIVIDER'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
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agreement between SUBDIVIDER and CITY. SUBDIVIDER shall also
be responsible for obtaining any public or private sanitary sewer,
domestic water, drainage, and/or utility easements or authorization to
accommodate the SUBDIVISION.
e. Commence construction of the improvements by the time established
in Section (22) 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 (22).
f. Install all SUBDIVISION public improvement monuments required by
law and prior to formal final acceptance of the public improvements
by CITY. Individual property monuments shall be installed within one
year of said acceptance.
g. Install street name signs conforming to CITY standards. Permanent
street name signs shall be installed before acceptance of the
improvements by CITY.
2. Acquisition and Dedication of Easements or Rights-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
SUBDIVIDER, 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. SUBDIVIDER
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shall 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 SUBDIVIDER.
3. Security. SUBDIVIDER shall at all times guarantee SUBDIVIDER's
performance by furnishing to CITY, and maintaining, good and sufficient
security as required by the Subdivision Laws 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
equipment, or furnishing labor and materials for the improvements
required to be constructed and installed pursuant to this Agreement
in an amount of 100% of the estimated cost of the improvements and
conforming to the requirements of Section 25 of this Agreement
(concerning prevailing wages) and Section 9554 of the California Civil
Code (to the extent that a subject contract involves an expenditure in
an amount subject to, and a contractor deemed to be a direct
contractor under, Section 9550 of the California Civil Code), and
which amount of such security shall be increased automatically by the
SUBDIVIDER upon an increase in the cost of construction of the
improvements or any of them, such that the payment bond(s) at all
times shall be in an amount not less than 100% of the sum of the total
amount payable pursuant to any construction contract(s) relating to
the improvements and the estimated cost of any improvements not
yet subject to a construction contract, and if the SUBDIVIDER fails to
so increase the amount of the security in connection with such an
increase in construction costs of the improvements, the SUBDIVIDER
shall provide the additional security within thirty (30) days after
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receiving demand from the City Engineer therefor; and
c. to guarantee or warranty the work done pursuant to this Agreement
for a period of one year following acceptance thereof by CITY against
any defective work or labor done or defective materials furnished in
the additional amount of 10% of the estimated cost of the
improvements; and
d. SUBDIVIDER shall also furnish to CITY good and sufficient security
in the amount of one hundred percent (100%) of the estimated cost
of setting SUBDIVISION monuments as stated previously in this
Agreement in Section (1)(f) for a period of one year plus thirty (30)
days from formal acceptance by the City Council.
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 security 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 incorporated into this Agreement. Upon provision of a replacement
security with the City Engineer and filing of a replacement security with the City
Clerk, the former security may be released.
4. Alterations to Improvement Plans.
a. Any changes, alterations or additions to the Improvement Plans not
exceeding ten percent (10%) of the original estimated cost of the
improvements, which are mutually agreed upon by CITY and
SUBDIVIDER, shall not relieve the improvement security given for
faithful performance of this Agreement. In the event such changes,
alterations, or additions exceed 10% of the original estimated cost of
the improvement, SUBDIVIDER shall provide improvement security
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for faithful performance as required by Section (3) of this Agreement
for one hundred percent (100%) of the total estimated cost of the
improvements as changed, altered, or amended, minus any
completed partial releases allowed by Section (6) of this Agreement.
b. Any changes, alterations or additions to the Improvement Plans,
which are mutually agreed upon by CITY and SUBDIVIDER, shall not
relieve the security given to secure payment to any contractor,
subcontractor, persons renting equipment, or furnishing labor and
materials for the improvements required to be constructed and
installed pursuant to this Agreement. In the event of any changes,
alterations, or additions that increase the estimated cost of the
improvement above the original estimated cost of the improvement,
SUBDIVIDER shall provide security to secure payment to any
contractor, subcontractor, persons renting equipment, or furnishing
labor and materials for the improvements required to be constructed
and installed pursuant to this Agreement as required by Section (3) of
this Agreement for one hundred percent (100%) of the total estimated
cost of the improvements as changed, altered, or amended, minus
any completed partial releases allowed by Section (6) of this
Agreement.
c. The SUBDIVIDER shall construct the improvements in accordance
with CITY standards in effect at the time of adoption of the Resolution
of Approval. CITY reserves the right to modify the standards
applicable to the SUBDIVISION 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 SUBDIVIDER 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.
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5. Inspection. SUBDIVIDER shall at all times maintain proper facilities and safe
access for inspection of the public improvements by CITY inspectors and to
the shops wherein any work is in preparation. Upon completion of the work,
SUBDIVIDER may request a final inspection by the City Engineer, or the City
Engineer's authorized representative. If the City Engineer, or the designated
representative, determines that the work has been completed in accordance
with this Agreement, then the City Engineer shall certify the completion of
the public improvements to the City Council. No improvements shall be
finally accepted by the City Council unless all aspects of the work have been
inspected and completed in accordance with the Improvement Plans. When
applicable law requires an inspection to be made by City at a particular stage
of the work of constructing and installing such improvements, CITY shall be
given timely notice of SUBDIVIDER's readiness for such inspection and
SUBDIVIDER shall not proceed with additional work until the inspection has
been made and the work approved. SUBDIVIDER shall bear all costs of
inspection and certification. No improvements shall be deemed completed
until accepted by the City Council pursuant to Section (17) herein.
6. Release of Securities. The securities required by this Agreement shall be
released as following:
a. Security given for faithful performance of any act, obligation, work or
agreement 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 for
faithful performance of improvement work as the improvement
progresses upon application thereof by the SUBDIVIDER; 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
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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 improvement
security which would reduce such security to an amount below that
required to guarantee the completion of the improvement work and
any other obligation imposed by this Agreement.
c. Security given to secure payment to the contractor, his or her
subcontractors and to persons furnishing labor, materials or
equipment shall, at the date that is the latest of (i) six (6) months after
completion and acceptance of the work, (ii) fifteen (15) days following
the expiration of the applicable statutory period in which any person
may bring suit against the surety(ies) on a payment bond as set forth
in Sections 8609 or 9558 of the California Civil Code, or (iii) fifteen
(15) days following the expiration of the applicable statutory period in
which any person may record a lien pursuant to Sections 8412 or
8414 of the California Civil Code, be reduced to an amount equal to
no less than 125% of the total claimed by all claimants for whom liens
or suit 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 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. No security given for the guarantee or warranty of work shall be
released until the expiration of the warranty period and until any
claims filed during the warranty period have been settled. As provided
in Section (10), the warranty period shall not commence until formal
final acceptance of all the work and improvements by the City Council.
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e. CITY may retain from any security released, an amount sufficient to
cover costs and reasonable expenses and fees, including reasonable
attorneys' fees.
7. Injury to Public Improvements, Public Property or Public Utilities Facilities.
SUBDIVIDER shall replace or repair or have replaced or repaired, as the
case may be, all public improvements, public utilities facilities and surveying
or subdivision monument which are destroyed or damaged as a result of any
work under this Agreement. SUBDIVIDER shall bear the entire cost of
replacement or repairs of any and all public or public utility property damaged
or destroyed by reason of any work done under this Agreement, whether
such property is owned by the United States or any agency thereof, or the
State of California, or any agency or political subdivision thereof, or by CITY
or any public or private utility corporation or by any combination of such
owners. Any repair or replacement shall be to the satisfaction, and subject
to the approval, of the City Engineer.
8. Permits. SUBDIVIDER shall, at SUBDIVIDER's expense, obtain all
necessary permits and licenses for the construction and installation of the
improvements, give all necessary notices and pay all fees and taxes required
by law.
9. Default of SUBDIVIDER.
a. Default of SUBDIVIDER shall include, but not be limited to,
(1) SUBDIVIDER's failure to timely commence construction of this
Agreement;
(2) SUBDIVIDER’s failure to timely complete construction of the
improvements;
(3) SUBDIVIDER’s failure to timely cure any defect in the
improvements;
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(4) SUBDIVIDER's failure to perform substantial construction work
for a period of twenty (20) calendar days after commencement
of the work;
(5) SUBDIVIDER's insolvency, appointment of a receiver, or the
filing of any petition in bankruptcy either voluntary or
involuntary which SUBDIVIDER fails to discharge within thirty
(30) days; the commencement of a foreclosure action against
the SUBDIVISION or a portion thereof, or any conveyance in
lieu or in avoidance of foreclosure; or
(6) SUBDIVIDER'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 SUBDIVIDER's obligations under this Agreement. CITY shall have the
right, subject to this Section, to draw upon or utilize the appropriate security to
mitigate CITY's damages in event of default by SUBDIVIDER. 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 SUBDIVIDER'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 the public
improvements in accordance with the improvement plans and specifications
contained herein.
In the event of SUBDIVIDER's default under this Agreement, SUBDIVIDER
authorizes CITY to perform such obligation twenty (20) days after mailing written
notice of default to SUBDIVIDER and to SUBDIVIDER's surety, and agrees to pay
the entire cost of such performance by CITY.
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CITY may take over the work and prosecute the same to completion, by
contract or by any other method CITY may deem advisable, for the account and at
the expense of SUBDIVIDER, and SUBDIVIDER's surety shall be liable to CITY for
any excess cost or damages occasioned CITY thereby. In such event, CITY,
without liability for so doing, may take possession of, and utilize in completing the
work, such materials, appliances, plants and other property belonging to
SUBDIVIDER as may be on the site of the work and necessary for performance of
the work.
c. Failure of SUBDIVIDER to comply with the terms of this Agreement
shall constitute consent to the filing by CITY of notice of violation
against all the lots in the SUBDIVISION, or to rescind the approval
or otherwise revert the SUBDIVISION to acreage. The remedy
provided by this subsection (c) is in addition to and not in lieu of other
remedies available to CITY. SUBDIVIDER agrees that the choice of
remedy or remedies for SUBDIVIDER's breach shall be in the
discretion of CITY.
d. 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 such obligations,
including but not limited to 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
SUBDIVIDER.
10. Warranty. SUBDIVIDER shall guarantee or warranty the work done
pursuant to this Agreement for a period of one year after final formal
acceptance of the SUBDIVISION by the City Council against any defective
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work or labor done or defective materials furnished. If within the warranty
period any work or improvement or part of any work or improvement done,
furnished, installed, or constructed by SUBDIVIDER fails to fulfill any of the
requirements of this Agreement or the improvement plans and specifications
referred to herein, SUBDIVIDER shall without delay and without any cost to
CITY, repair or replace or reconstruct any defective or otherwise
unsatisfactory part or parts of the work or structure. Should SUBDIVIDER
fail to act promptly or in accordance with this requirement, SUBDIVIDER
hereby authorizes CITY, at CITY's option, to perform the work twenty (20)
days after mailing written notice of default to SUBDIVIDER and to
SUBDIVIDER'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 SUBDIVIDER can be notified, CITY may, in its sole
discretion, make the necessary repairs or replacement or perform the
necessary work and SUBDIVIDER shall pay to CITY the cost of such repairs.
11. SUBDIVIDER Not Agent of CITY. Neither SUBDIVIDER nor any of
SUBDIVIDER's agents, contractors or subcontractors are or shall be
considered to be agents of CITY in connection with the performance of
SUBDIVIDER'S obligations under this Agreement.
12. Injury to Work. Until such time as the improvements are accepted by CITY,
SUBDIVIDER shall be responsible for and bear the risk of loss to any of the
improvements constructed or installed. Until such time as all improvements
required by this Agreement are fully completed and accepted by CITY,
SUBDIVIDER will be responsible for the care, maintenance of, and any
damage to such improvements. CITY 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 the
work or improvements. All such risks shall be the responsibility of and are
hereby assumed by SUBDIVIDER.
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13. Environmental Warranty. Prior to the acceptance of any dedications or
improvements by CITY, SUBDIVIDER shall certify and warrant that neither
the property to be dedicated nor SUBDIVIDER is in violation of any
environmental law and neither the property to be dedicated nor the
SUBDIVIDER is subject to any existing, pending or threatened investigation
by any federal, state or local governmental authority under or in connection
with environmental law. Neither SUBDIVIDER nor any third party will use,
generate, manufacture, produce, or release, on, under, or about the
property to be dedicated, any hazardous substance except in
compliance with all applicable environmental laws. SUBDIVIDER has not
caused or permitted the release of, and has no knowledge of the release or
presence of, any hazardous substance on the property to be dedicated or the
migration of any hazardous substance from or to any other property adjacent
to, or in the vicinity of, the property to be dedicated. SUBDIVIDER's prior and
present use of the property to be dedicated has not resulted in the release
of any hazardous substance on the property to be dedicated. SUBDIVIDER
shall give prompt written notice to CITY at the address set forth herein of:
a. Any proceeding or investigation by any federal, state or local
governmental authority with respect to the presence of any hazardous
substance on the property to be dedicated or the migration thereof
from or to any other property adjacent to, or in the vicinity of, the
property to be dedicated;
b. Any claims made or threatened by any third party against CITY or the
property to be dedicated relating to any loss or injury resulting from
any hazardous substance; and,
c. SUBDIVIDER's discovery of any occurrence or condition on any
property adjoining in the vicinity of the property to be dedicated that
could cause the property to be dedicated or any part thereof to be
subject to any restrictions on its ownership, occupancy, use for the
revised 1-27-2022 - 16 -
purpose for which is it is intended, transferability or suit under any
environmental law.
14. Other Agreements. 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 subdividers 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.
15. SUBDIVIDER'S Obligation to Warn Public During Construction. Until formal
final acceptance of the improvements, SUBDIVIDER 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 condition.
16. Vesting of Ownership. 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.
17. 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 after
final completion and inspection of all improvements. The City Council shall
act upon the Engineer's recommendation within sixty (60) days from the date
the City Engineer certifies that the work has been finally completed, as
provided in Section (6). Such acceptance shall not constitute a waiver of
defects by CITY.
18. Indemnity/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 SUBDIVIDER, its agents, or employees, contractors and
revised 1-27-2022 - 17 -
subcontractors in the performance of this Agreement. SUBDIVIDER further
agrees to protect, defend, indemnify and hold harmless CITY, its officials,
boards and commissions, and members thereof 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 omissions of SUBDIVIDER, its agents,
employees, contractors and subcontractors in the performance of this
Agreement, except for such claims, demands, causes of action, liability, or
loss arising out of the sole active negligence of the CITY, its officials, boards,
commissions, the members thereof, agents, and employees, including 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 to hold harmless shall extend to injuries to
persons and damages or taking of property resulting from the design or
construction of said SUBDIVISION, and the public improvements as
provided herein, and in addition, to adjacent property owners as a
consequence of the diversion of waters from the design and construction of
public drainage systems, streets and other public improvements.
Acceptance by CITY of the improvements shall not constitute an assumption
by 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 improvements pursuant to the approved
improvement plans or map, regardless of any negligent action or inaction
taken by CITY in approving the plans or map, unless the particular
improvement design was specifically required by CITY over written objection
by SUBDIVIDER submitted to the City Engineer before approval of the
particular improvement design, which objection indicated that the particular
improvement design was dangerous or defective and suggested an alternative
safe and feasible design.
After acceptance of the improvements, the SUBDIVIDER shall remain
obligated to eliminate any defect in design or dangerous condition caused by the
design or construction defect; however, SUBDIVIDER shall not be responsible for
revised 1-27-2022 - 18 -
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 SUBDIVIDER shall be responsible for all liability for design
and construction of the improvements installed or work done pursuant to this
Agreement and that CITY shall not be liable for any negligence, 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.
In the event of any administrative, legal or equitable action instituted by a
third party challenging the validity of any of the procedures leading to the adoption
of the Resolution of Approval, the project approvals set forth therein or the project
approvals themselves, or the terms of those approvals, including the failure to
include specific terms, SUBDIVIDER and CITY each shall have the right, in their
sole discretion, to elect whether or not to defend such action. SUBDIVIDER, at its
sole expense, shall defend, indemnify, and hold harmless the CITY (including its
agents, officers, and employees) from any such action, claim, damages, or
proceeding of whatever nature with counsel chosen by the CITY, subject to
SUBDIVIDER’s approval of counsel, which shall not be unreasonably denied, and
at SUBDIVIDER’s sole expense. If the CITY is aware of such an action or
proceeding, it shall promptly notify SUBDIVIDER and cooperate in the defense.
SUBDIVIDER, upon such notification, shall deposit sufficient funds in the judgment
of the CITY’s Finance Director to cover the expense of defending such action
without any offset or claim against said deposit to assure that the CITY expends no
CITY funds. If both parties to this Agreement elect to defend, the parties hereby
agree to affirmatively cooperate in defending the said action and to execute a joint
defense and confidentiality agreement in order to share and protect information,
under the joint defense privilege recognized under the applicable law. As part of
the cooperation in defending an action, CITY and SUBDIVIDER shall coordinate
their defense in order to make the most efficient use of legal counsel and to share
and protect information. SUBDIVIDER and CITY shall each have sole discretion to
terminate its defense at any time. CITY shall not settle any third party litigation
revised 1-27-2022 - 19 -
arising from the Resolution of Approval, or the project approvals set forth therein,
without SUBDIVIDER’s consent, which consent shall not be unreasonably withheld,
conditioned or delayed unless SUBDIVIDER materially breaches this
indemnification requirement.
SUBDIVIDER 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.
19. Personal Nature of SUBDIVIDER'S Obligations. All of SUBDIVIDER's
obligations under this Agreement are and shall remain the personal
obligations of SUBDIVIDER notwithstanding a transfer of all or any part of
the property within the SUBDIVISION subject to this Agreement, and
SUBDIVIDER shall not be entitled to assign its obligations under this
Agreement to any transferee of all or any part of the property within the
SUBDIVISION or to any other third party without the express written consent
of CITY. If the CITY does consent to a transfer of this Agreement and the
transferee assumes all of SUBDIVIDER’s obligations so transferred,
SUBDIVIDER shall be released of its transferred obligations hereunder, all
as more specifically provided in an agreement to be entered into in
connection with such transfer and in form and substance acceptable to the
City Attorney.
20. Sale or Disposition of SUBDIVISION. Seller or other SUBDIVIDER may
request a novation of this Agreement and a substitution of security. Upon
approval of the novation and substitution of securities, the SUBDIVIDER
may request a release or reduction of the securities required by this
Agreement. Nothing in the novation shall relieve the SUBDIVIDER of the
obligations under Section (18) for the work or improvement done by
SUBDIVIDER.
revised 1-27-2022 - 20 -
21. Time of the Essence. Time is of the essence in the performance of this
Agreement.
22. Time for Commencement of Work; Time Extensions. SUBDIVIDER shall
commence substantial construction of the improvements required by this
Agreement not later than six (6) months after the date of this Agreement. In
the event good cause exists as determined by the City Engineer, the time for
commencement of construction or completion of the improvements
hereunder may be extended for a period or periods not exceeding a total of
two (2) additional years. The extension shall be executed in writing by the
City Engineer. Any such extension may be granted without notice to
SUBDIVIDER'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 SUBDIVIDER to an extension. Delay, other
than delay in the commencement of work, resulting from an act of CITY, act
of God, or by storm or inclement weather, strikes, boycotts or similar political
actions which prevents the conducting of work, which SUBDIVIDER could
not have reasonably foreseen and, furthermore, were not caused by or
contributed to by SUBDIVIDER, shall constitute good cause for and
extension of the time for completion. As a condition of such extension, the
City Engineer may require SUBDIVIDER to furnish new security
guaranteeing performance of this Agreement as extended in an increased
amount as necessary to compensate for any increase in construction costs
as determined by the City Engineer.
23. No Vesting of Rights. Performance by SUBDIVIDER of this Agreement shall
not be construed to vest SUBDIVIDER's rights with respect to any change in
any zoning or building law or ordinance.
24. 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
revised 1-27-2022 - 22 -
applies. While acknowledging but without expressing any concurrence with
the position stated in the foregoing sentence, the SUBDIVIDER hereby
agrees that it shall (i) require the construction of all public improvements
required by the Conditions of Approval, including but not limited to those
identified as CFD eligible facilities in Schedule “A” attached hereto, to be
performed as “public work” to which Section 1771 of the Labor Code applies,
and (ii) in furtherance of Section 1781(a)(2)(C) of the Labor Code, comply
with all payment bonding requirements of the CITY with respect to such
public improvements, including but not limited to the provision by the
SUBDIVIDER to the CITY of a payment bond with respect to each subject
construction contract (A) securing with respect to such contract the payment
of claims of laborers (including but not limited to the payment of prevailing
wages as required by this Section 25), material suppliers, and other persons
as provided by law, (B) conforming with the requirements of Section 9554 of
the California Civil Code (to the extent that a subject contract involves an
expenditure in an amount subject to, and a contractor deemed to be a direct
contractor under, Section 9550 of the California Civil Code), and (C) naming
the CITY as an obligee unto which the SUBDIVIDER, as principal, and the
surety are bound. In the event a contractor to whom the SUBDIVIDER
awards a subject construction contract provides a payment bond meeting
the foregoing requirements and also naming the SUBDIVIDER as an
additional obligee unto which the contractor, as principal, and the surety are
bound, such contractor’s payment bond shall be deemed as the provision by
the SUBDIVIDER of a payment bond hereunder.
As used in this Agreement, “Conditions of Approval” means, with respect to
any portion of the property within the SUBDIVISION, the conditions of
approval of all land use entitlements approved by the CITY or any other
governmental agency, including but not limited to the Resolution of Approval,
and the conditions of this Agreement and any development agreement,
which conditions must be satisfied in order to develop such property.
revised 1-27-2022 - 23 -
Without limiting the foregoing, with respect to improvements to be
constructed by SUBDIVIDER or under the direction of SUBDIVIDER
hereunder, SUBDIVIDER shall require the contractor and subcontractors to
pay prevailing wages and to comply with all applicable prevailing wage laws
pursuant to California Labor Code Sections 1720 et seq. and implementing
regulations of the California Department of Industrial Relations.
SUBDIVIDER shall indemnify, defend, protect and hold harmless City, its
agents, elected officials, officers, employees and independent consultants
from and against any third party claim, cause of action, administrative or
judicial proceeding or enforcement action of any kind arising out of or
resulting from SUBDIVIDER or its contractors and subcontractors’ alleged or
actual failure to comply with prevailing wage laws.
In addition, the SUBDIVIDER agrees to require any person or entity to whom
the SUBDIVIDER sells the property within the SUBDIVISION to comply with
this Section 25.
Notwithstanding the foregoing, the CITY and the SUBDIVIDER agree that
(x) this Agreement is not intended to be a public works contract; (y) the
subject public improvements are of local and not state-wide concern, and (z)
the foregoing shall not in any way imply or be construed to mean that this
Agreement or the subject public improvements constitute a public work for
any purpose other than to assure compliance with the Labor Code.
26. 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.
27. Captions. The captions of this Agreement are for convenience and reference
only and shall not define, explain, modify, limit, exemplify, or aid in the
interpretation, construction or meaning of any provisions of this Agreement.
revised 1-27-2022 - 24 -
28. Litigation or Arbitration. In the event that suit or arbitration is brought to
enforce the terms of this Agreement, the prevailing party shall be entitled to
litigation costs and reasonable attorneys' fees.
29. Incorporation of Recitals. The recitals to this Agreement are hereby
incorporated into in the terms of this Agreement.
30. Entire Agreement. This Agreement constitutes the entire agreement of the
parties with respect to the subject matter. All modifications, amendments, or
waivers of the terms of this Agreement must be in writing and signed by the
appropriate representatives of the parties.
31. Interpretation. This Agreement shall be interpreted in accordance with the
laws of the State of California.
32. No Third Party Beneficiaries. Nothing expressed or implied in this
Agreement is intended to nor shall be construed to create or extend any
rights or benefits to any third party, other than the Parties hereto.
33. Jurisdiction. Jurisdiction of all disputes over the terms of this Agreement
shall be in the County of Riverside, State of California.
[signature page follows]
EXHIBIT A
ESTIMATED COST OF WORK PURSUANT TO IMPROVEMENT PLANS
[see attached]
Prepared for:
Mission Valley Properties
Tract Map No. 37506 - 2
ENGINEER'S OPINION OF PROBABLE COST FOR
PHASE 2 (AREA 3) ONSITE STREET AND STORM DRAIN
IMPROVEMENTS
Southeast Corner of Portola Avenue and Gerald Ford Drive
801 San Ramon Valley Blvd.
Danville CA 94526
City Tracking No. PG21-0023
in the City of Palm Desert
Project Location:
July 5, 2022
MSA JOB #2497
Page 1 of 4
ON SITE IMPROVEMENTS
DESCRIPTION UNIT QUANTITY UNIT COST TOTAL COST
Street and Storm Drain
Construct 3" A.C. Pavement Over 4" Class II
Aggregate Base SF 270,951 $3.00 $812,853.00
Construct 6" Curb and Gutter Type I Per City
of Palm Desert Standard Plan No. 102 LF 15,191 $20.00 $303,820.00
Construct Cross Gutter Type II per City of
Palm Desert Standar Plan No. 108 With
Modified Slope as Shown in Detail on Sheet
No. 16 SF 12,026 $10.00 $120,260.00
Construct Sidewalk per City of Palm Desert
Standard Plan No. 104 SF 58,581 $4.00 $234,324.00
Construct Concrete Driveway per City of Palm
Desert Standard Plan No. 105 (Width per Plan)SF 21,642 $5.00 $108,210.00
Construct Type 1 Modified Curb Ramp Case C
per Caltrans Std. Dwg. No. A88A and Detail on
Sheet No. 16 SF 503 $10.00 $5,030.00
Construct Type 2 Modified Curb Ramp Case C
per Caltrans Std. Dwg. No. A88A and Detail on
Sheet No. 16 SF 4,600 $10.00 $46,000.00
Construct Curb Ramp Case A per Caltrans
Std. Dwg. No. A88A and Detail on Sheet No. 16 EA 15 $1,100.00 $16,500.00
Construct Combination Curb Inlet Catch
Basin No. 1 per County of Riverside Standard
Dwg. No. 301, See Plan for W EA 6 $13,500.00 $81,000.00
Construct Gutter Depression for Combination
Grate Opening Catch Basin Per Count of
Riverside Standard Dwg. No. 301 EA 6 $900.00 $5,400.00
Install Stop Legend, Limit Line, Sign Post,
Stop Sign and Street Name Sign per Stop
Sign Legend and Sign Post Detail on Sheet
No. 16 EA 17 $1,500.00 $25,500.00
Adjust Water Valve to Grade per CVWD
Standard and Specifications, See Serate
Proposed Water Plans N/A N/A
Adjust Sewer Manhole to Grade per CVWD
Standard and Specifications, See Separate
Proposed Sewer Plans N/A N/A
Page 2 of 4
Construct Ribbon Gutter per Detail on Sheet
No. 16 LF 522 $20.00 $10,440.00
Construct 6" Curb Type II per City of Palm
Desert Standard Plan No. 103 LF 464 $20.00 $9,280.00
Install 4" Wide Double Hairpin White Striping
per Detail on Sheet No. 16 LF 425 $2.00 $850.00
Sawcut and Join Existing Pavement Per
Overlay Join Detail on Sheet No. 16 LF 325 $2.00 $650.00
Remove and Replace A.C. Pavement as
Necessary Per Existing Structural Section and
Re-Paint Any Damaged or Disturbed Striping SF 528 $5.00 $2,640.00
Remove Existing Barrier Curb or Curb and
Gutter LF 264 $10.00 $2,640.00
Remove Existing P.C.C. Concrete SF 1,549 $2.00 $3,098.00
Remove, Relocate or Adjust to Grade Existing
Utility as Necessary (Contractor to Verify with
Appropriate Purveyor's Disposition)N/A N/A
Construct 8" Edge Band to 6" Curb & Gutter
Transition per Detail on Sheet No. 15 LF 75 $30.00 $2,250.00
Construct 8" Edge Band per Detail on Sheet
16. LF 69 $20.00 $1,380.00
Provide Accessible Parking Symbol, Striping,
and Signs per CBC (2019 Edition) with EV
Charging Striping per Detail on Sheet 15. EA 1 $750.00 $750.00
Construct 6" Thick P.C.C Concrete (560-C-
3250) SF 139 $10.00 $1,390.00
Furnish and Install 18" HDPE Storm Drain.
See HDPE Typical Trench Section On Sheet 15 LF 507 $75.00 $38,025.00
Furnish and Install 24" HDPE Storm Drain.
See HDPE Typical Trench Section On Sheet 15 LF 607 $95.00 $57,665.00
Proposed Combination Curb Inlet Catch
Basin per Street Plan. (See Plan "H" and "W") N/A N/A
Furnish and Install 18" X 22 1/2° HDPE Bend EA 2 $2,000.00 $4,000.00
Furnish and Install 24" x 45° HDPE Bend EA 1 $2,500.00 $2,500.00
Furnish and Install 18" HDPE Flared End
Outlet Structure EA 1 $2,000.00 $2,000.00
Page 3 of 4
Furnish and Install 24" HDPE Flared End
Outlet Structure EA 3 $3,000.00 $9,000.00
Construct Concrete Collar per R.C.F.C.D. Std.
Dwg. No. M803 EA 7 $1,000.00 $7,000.00
Furnish and Install 60" Inside Diameter
Manhole per CVWD Dwg. Std. S-5 EA 3 $6,500.00 $19,500.00
Construct Rip Rap Energy Dissipator Pad per
City of San Diego Dwg. No. SDD-104 and
Detail on Sheet 12, 13 and 14 EA 3 $3,000.00 $9,000.00
TOTAL OF STREET AND STORM DRAIN IMPROVEMENTS $1,942,955.00
Assumptions:
1.
DESCRIPTION TOTAL COST
On Site Improvements
STREET AND STORM DRAIN $1,942,955.00
SUBTOTAL OF ON SITE IMPROVEMENTS $1,942,955.00
20% CONTINGENCY $388,591.00
TOTAL $2,331,546.00
Assumptions:
1
2
SUMMARY
MSA Consulting Inc. makes no representation concerning the estimated quantities and cost
figures other than that all such figures are opinions only and the Engineer shall not be responsible
for any fluctuations in cost factors or the actual quantities shown.
The above opinion does not include raw land, legal fees, agency permits, professional engineering
fees, construction phasing, bonds, financing/carrying costs, construction staking, soils testing,
accounting or construction management.
These quantities are based on Onsite Street and Storm Drain Improvement Plans submitted 6-28-
22.
Page 4 of 4
EXHIBIT B
LEGAL DESCRIPTION
EXHIBIT “A”
LEGAL DESCRIPTION
PARK “D”
PAGE 1 OF 2
IN THE CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA,
THAT PORTION OF PARCEL 9, OF PARCEL MAP NO. 31730, AS SHOWN BY MAP
ON FILE IN BOOK 211 OF PARCEL MAPS, AT PAGES 63 THROUGH 75, INCLUSIVE,
RIVERSIDE COUNTY RECORDS, AS ADJUSTED BY CERTIFICATE OF
COMPLIANCE NO. 05-01, RECORDED AUGUST 24, 2005, AS DOCUMENT NO. 2005-
0696754, OFFICIAL RECORDS, LOCATED IN THE NORTHWEST QUARTER OF
SECTION 33, TOWNSHIP 4 SOUTH, RANGE 6 EAST, SAN BERNARDINO MERIDIAN,
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTERLINE INTERSECTION OF PACIFIC AVENUE AND
COLLEGE DRIVE AS SHOWN ON SAID PARCEL MAP 31730, SAID POINT ALSO
BEING ON A CURVE IN COLLEGE DRIVE, A RADIAL LINE TO SAID POINT BEARS
NORTH 07°29'27" EAST;
THENCE SOUTH 37°20'49" EAST, A DISTANCE OF 537.35 FEET TO THE BEGINNING
OF A NON-TANGENT CURVE, CONCAVE NORTHWESTERLY, HAVING A RADIUS
OF 379.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 29°15'38" EAST,
AND THE TRUE POINT OF BEGINNING;
THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE, THROUGH A
CENTRAL ANGLE OF 05°48'57", AN ARC DISTANCE OF 38.47 FEET;
THENCE NORTH 54°55'25" EAST, A DISTANCE OF 61.87 FEET TO THE BEGINNING
OF A TANGENT CURVE, CONCAVE SOUTHERLY, HAVING A RADIUS OF 15.00
FEET;
THENCE EASTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL
ANGLE OF 53°38'58", AN ARC DISTANCE OF 14.05 FEET, A RADIAL LINE TO SAID
POINT BEARS NORTH 18°34'23" EAST;
THENCE NON-TANGENT TO SAID CURVE SOUTH 54°55'25" WEST, A DISTANCE OF
82.08 FEET;
THENCE SOUTH 35°04'35" EAST, A DISTANCE OF 62.13 FEET TO THE BEGINNING
OF A TANGENT CURVE, CONCAVE NORTHEASTERLY, HAVING A RADIUS OF
195.00 FEET;
THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE, THROUGH A
CENTRAL ANGLE OF 26°47'25", AN ARC DISTANCE OF 91.18 FEET;
EXHIBIT “A”
LEGAL DESCRIPTION
PARK “D”
PAGE 2 OF 2
THENCE SOUTH 61°52'00" EAST, A DISTANCE OF 58.80 FEET TO THE BEGINNING
OF A NON-TANGENT CURVE, CONCAVE EASTERLY, HAVING A RADIUS OF 1038.00
FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 65°31'59" WEST;
THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL
ANGLE OF 06°23'39", AN ARC DISTANCE OF 115.84 FEET;
THENCE SOUTH 18°04'23" WEST, A DISTANCE OF 36.67 FEET;
THENCE SOUTH 63°58'57" WEST, A DISTANCE OF 7.18 FEET TO THE BEGINNING
OF A NON-TANGENT CURVE, CONCAVE SOUTHERLY, HAVING A RADIUS OF
1038.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 19°53'31" EAST;
THENCE WESTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL
ANGLE OF 05°38'40", AN ARC DISTANCE OF 102.26 FEET;
THENCE NORTH 75°45'09" WEST, A DISTANCE OF 314.02 FEET;
THENCE NORTH 01°23'06" EAST, A DISTANCE OF 14.67 FEET TO THE BEGINNING
OF A NON-TANGENT CURVE, CONCAVE NORTHERLY, HAVING A RADIUS OF
750.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 00°14'21" WEST;
THENCE EASTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL
ANGLE OF 24°08'40", AN ARC DISTANCE OF 316.05 FEET TO THE BEGINNING OF
A COMPOUND CURVE, CONCAVE WESTERLY, HAVING A RADIUS OF 15.00 FEET,
A RADIAL LINE TO SAID POINT BEARS SOUTH 23°54'19" EAST;
THENCE NORTHERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL
ANGLE OF 95°21'19", AN ARC DISTANCE OF 24.96 FEET;
THENCE NORTH 29°15'38" WEST, A DISTANCE OF 75.93 FEET, TO THE TRUE
POINT OF BEGINNING;
SUBJECT TO EXISTING EASEMENTS, COVENANTS, RIGHTS AND RIGHTS-OF-
WAY OF RECORD.
CONTAINING 49,343 SQUARE FEET OR 1.133 ACRES MORE OR LESS.
EXHIBIT “A”
LEGAL DESCRIPTION
PARK “E”
PAGE 1 OF 1
IN THE CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA,
THAT PORTION OF PARCEL 9, OF PARCEL MAP NO. 31730, AS SHOWN BY MAP
ON FILE IN BOOK 211 OF PARCEL MAPS, AT PAGES 63 THROUGH 75, INCLUSIVE,
RIVERSIDE COUNTY RECORDS, AS ADJUSTED BY CERTIFICATE OF
COMPLIANCE NO. 05-01, RECORDED AUGUST 24, 2005, AS DOCUMENT NO. 2005-
0696754, OFFICIAL RECORDS, LOCATED IN THE NORTHWEST QUARTER OF
SECTION 33, TOWNSHIP 4 SOUTH, RANGE 6 EAST, SAN BERNARDINO MERIDIAN,
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTERLINE INTERSECTION OF PACIFIC AVENUE AND
COLLEGE DRIVE AS SHOWN ON SAID PARCEL MAP 31730, SAID POINT ALSO
BEING ON A CURVE IN COLLEGE DRIVE, A RADIAL LINE TO SAID POINT BEARS
NORTH 07°29'27" EAST;
THENCE SOUTH 05°06'22" WEST, A DISTANCE OF 637.33 FEET TO THE TRUE
POINT OF BEGINNING;
THENCE SOUTH 14°14'51" WEST, A DISTANCE OF 225.00 FEET;
THENCE NORTH 75°45'09" WEST, A DISTANCE OF 92.83 FEET TO THE BEGINNING
OF A TANGENT CURVE, CONCAVE NORTHERLY, HAVING A RADIUS OF 1033.00
FEET;
THENCE WESTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL
ANGLE OF 01°48'48", AN ARC DISTANCE OF 32.69 FEET, A RADIAL LINE TO SAID
POINT BEARS SOUTH 16°03'39" WEST;
THENCE NON-TANGENT TO SAID CURVE NORTH 16°03'39" EAST, A DISTANCE OF
225.00 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE
NORTHERLY, HAVING A RADIUS OF 808.00 FEET, A RADIAL LINE TO SAID POINT
BEARS SOUTH 16°03'39" WEST;
THENCE EASTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL
ANGLE OF 01°48'48", AN ARC DISTANCE OF 25.57 FEET;
THENCE SOUTH 75°45'09" EAST, A DISTANCE OF 92.83 FEET, TO THE TRUE POINT
OF BEGINNING;
SUBJECT TO EXISTING EASEMENTS, COVENANTS, RIGHTS AND RIGHTS-OF-
WAY OF RECORD.
CONTAINING 27,441 SQUARE FEET OR 0.630 ACRES MORE OR LESS.
-1-
12812-0001\2706359v3.doc
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Successor Agency to the Palm Desert
Redevelopment Agency
c/o City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
Attention: Executive Director
SPACE ABOVE THIS LINE FOR RECORDER’S USE
This Document is recorded for the benefit of the Successor Agency to the Palm Desert
Redevelopment Agency and is exempt from recording fees pursuant to Sections 6103,
27383 and 27388.1 of the California Government Code.
TEMPORARY RETENTION BASIN AND CONSTRUCTION EASEMENT
AGREEMENT
THIS TEMPORARY RETENTION BASIN AND CONSTRUCTION EASEMENT
AGREEMENT (the “Agreement”), dated as of ____________________, 2022 (the “Effective
Date”), is entered into by and between SUCCESSOR AGENCY TO THE PALM DESERT
REDEVELOPMENT AGENCY, a public body (the “Grantor”), and UNIVERSITY PARK
INVESTOR, LLC, a Delaware limited liability company (the “Grantee) with reference to the
recitals of fact set forth below. Grantor and Grantee are from time to time hereinafter referred to
individually as a “party” and collectively as the “parties.”
RECITALS
A. Grantor is the owner of certain real property located in the City of Palm Desert (the
“City”), County of Riverside (the “County”), State of California, more particularly described in
Exhibit A and depicted as the “SARDA Property” on Exhibit B, each attached hereto and
incorporated herein by this reference (the “SARDA Property”).
B. Grantee is the owner of certain real property located in the City, situated adjacent
to the SARDA Property, more particularly described in Exhibit C attached hereto and
incorporated herein by this reference, and depicted as the “UPI Property” on Exhibit B (the “UPI
Property”).
C. Grantee desires the temporary use of a portion of the SARDA Property, more
particularly described in Exhibit D attached hereto and incorporated herein by this reference and
depicted as the “Temporary Basin Easement” on Exhibit E attached hereto and incorporated
herein by this reference (the “Temporary Basin Property”), in order to create temporary retention
basins to direct and retain surface water runoff from the SARDA Property, as depicted on the
approved Vesting Tentative Tract Map No. 37506, and to construct and grade the retention basins
and those portions of the UPI Property that abut the SARDA Property.
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D. Grantor and Grantee anticipate that Grantor will sell the SARDA Property to one
or more unaffiliated third parties pursuant to the Grantor’s Long Range Property Management
Plan, as amended, for development of the SARDA Property, at which point the retention basins
may no longer be required.
E. In connection with the need to appropriately capture surface water runoff from the
SARDA Property that would otherwise drain onto the UPI Property, Grantee desires to receive,
and Grantor is willing to grant, an easement for the temporary construction, use, maintenance,
operation, and potential removal of the retention basins upon the terms, covenants and conditions
set forth herein.
F. It is the intent of the parties that the Grantee shall be solely responsible for all costs
associated with the Temporary Basin Easement (as defined in Section 1.1), and that the Temporary
Basin Easement and the activities of the Grantee with respect thereto will not adversely affect the
ability of the Grantor to properly dispose of the SARDA Property in conformance with Grantor’s
Long Range Property Management Plan, as amended.
NOW, THEREFORE, in consideration of the foregoing recitals of fact, the mutual
covenants contained herein, and for such other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, Grantor and Grantee, for themselves and their
respective successors and assigns, hereby agree as follows:
AGREEMENT
1. Easement.
1.1 Temporary Basin Easement. Grantor hereby grants to Grantee a
temporary nonexclusive easement (the “Temporary Basin Easement”) over, under, upon, across
and through the Temporary Basin Property. The Temporary Basin Easement shall be used by
Grantee and other Permitted Users (as defined in Section 1.3) solely and exclusively for purposes
of the construction, installation, start-up, operation, use, maintenance, inspection, testing, repair,
reconstruction, replacement and (if necessary) removal of temporary storm water retention basins
and related facilities and improvements (collectively, the “Retention Basins”).
1.2 Related Access Rights. The Temporary Basin Easement shall be
deemed to include the right of Permitted Users for ingress and egress of trucks, automobiles, other
vehicles, and equipment and personnel to and from the Temporary Basin Property as may be
necessary to facilitate the construction, installation, start-up, operation, use, maintenance,
inspection, testing, repair, reconstruction, replacement and, if necessary, removal of the Retention
Basins.
1.3 Limitations on Use; Permitted Users. Use of the Temporary Basin
Easement shall not commence unless and until plans and specifications for the Retention Basins
have been submitted by Grantee or its designee to the City and the City or its designee has approved
in writing such plans and specifications. In using the Temporary Basin Easement, Grantee and all
other Permitted Users: (a) shall comply with all applicable federal, state, regional and local laws,
statutes, ordinances, regulations, guidelines, rules, orders, judicial and administrative decisions
(collectively, the “Applicable Laws”), including all Applicable Laws with respect to Hazardous
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Materials (as defined in Section 1.4), and any and all applicable insurance requirements; (b) shall
not directly or indirectly create, incur, assume or suffer to exist any mechanic’s, materialmen’s or
other liens, claims or levies of any kind upon the SARDA Property (each a “Lien”); and (c) shall
promptly, at no cost to Grantor, take such action as may be necessary to discharge or eliminate or
bond in a manner satisfactory to Grantor any such Lien. The Temporary Basin Easement may be
used solely in accordance with the provisions hereof by Grantee, its successors and assigns, and
their respective employees, representatives, agents, lessees, licensees, contractors, subcontractors
and consultants (collectively, the “Permitted Users”).
1.4 Hazardous Materials. Without limiting the provisions of Section 1.3,
in its use of the Temporary Basin Easement, Grantee shall not use, store or transport, or permit or
cause to be used, stored or transported, any Hazardous Materials (as defined below) over, under,
upon, across or through the SARDA Property except as permitted by, and in strict compliance
with, all Applicable Laws and any and all applicable insurance requirements. In no event shall
Grantee release or dispose of any Hazardous Materials over, under, upon, across or through the
Temporary Basin Property.
As used herein, “Hazardous Materials” means any chemical, material or substance
now or hereafter defined as or included in the definition of hazardous substances, hazardous
wastes, hazardous materials, extremely hazardous waste, restricted hazardous waste, toxic
substances, pollutant or contaminant, imminently hazardous chemical substance or mixture,
hazardous air pollutant, toxic pollutant, or words of similar import under any local, state or federal
law or under the regulations adopted or publications promulgated pursuant thereto applicable to
the SARDA Property, including, without limitation: the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. 9601, et seq. (“CERCLA”); the Hazardous
Materials Transportation Act, as amended, 49 U.S.C. 1801, et seq.; the Federal Water Pollution
Control Act, as amended, 33 U.S.C. 1251, et seq.; and the Resource Conservation and Recovery
Act of 1976, 42 U.S.C. 6901, et seq. (“RCRA”). The term Hazardous Materials shall also include
any of the following: any and all toxic or hazardous substances, materials or wastes listed in the
United States Department of Transportation Table (49 CFR 172.101) or by the Environmental
Protection City as hazardous substances (40 CFR. Part 302) and in any and all amendments thereto
in effect as of the Effective Date; oil, petroleum, petroleum products (including, without limitation,
crude oil or any fraction thereof), natural gas, natural gas liquids, liquefied natural gas or synthetic
gas usable for fuel, not otherwise designated as a hazardous substance under CERCLA; any
substance which is toxic, explosive, corrosive, reactive, flammable, infectious or radioactive
(including any source, special nuclear or by-product material as defined at 42 U.S.C. 2011, et seq.),
carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by any governmental
authority; asbestos in any form; urea formaldehyde foam insulation; transformers or other
equipment which contain dielectric fluid containing levels of polychlorinated byphenyls; radon
gas; or any other chemical, material or substance (i) which poses a hazard to the SARDA Property,
to adjacent properties, or to persons on or about the SARDA Property, (ii) which causes the
SARDA Property to be in violation of any of the aforementioned laws or regulations, or (iii) the
presence of which on or in the SARDA Property requires investigation, reporting or remediation
under any such laws or regulations.
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2. Term; Easement In Gross and Appurtenant.
2.1 Term. The term of this Agreement and the Temporary Basin Easement
(the “Term”) shall commence on the Effective Date and, unless otherwise agreed in writing by the
parties, shall terminate upon the earlier of (i) acceptance of the maintenance of the Retention
Basins by Grantor’s successor-in-interest to the Temporary Basin Property and the City’s approval
of such acceptance, (ii) agreement by such successor-in-interest to Grantor with the City to
construct alternative facilities to retain or redirect surface water runoff from the SARDA property
and the City’s approval of such facilities, or (iii) at the option of the Grantor and with the prior
consent of the City, the failure of Grantee to perform any of its obligations under this Agreement,
and if such failure is curable within thirty (30) days, the expiration of thirty (30) days after notice
of such failure from Grantor to Grantee. If such failure is not curable within thirty (30) days,
Grantee may have such longer period of time as is reasonably necessary to complete the cure,
provided that Grantee has commenced to cure within the initial thirty (30) day period and diligently
prosecutes such cure to completion. Within thirty (30) days following the termination of this
Agreement and the Temporary Basin Easement, the Grantee shall execute and record in the
Official Records of the County a quitclaim deed acknowledging such termination and conveying
all of its interests and rights, if any, under this Agreement to the owner of the Temporary Basin
Property. Such quitclaim deed shall be in form and substance reasonably satisfactory to the owner
of the Temporary Basin Property.
2.2 Easement Appurtenant. Until the expiration of the Term, the
Temporary Basin Easement shall constitute an appurtenant easement in favor of Grantee for the
benefit of Grantee, its successors and assigns, and the UPI Property; provided, however, that
except as otherwise set forth in this Section 2.2, the Grantee may not assign or otherwise transfer
its interest in this Agreement, or its interest in the Temporary Basin Easement, without the prior
written consent of the Executive Director of the Grantor, which consent may be granted or withheld
in the Executive Director’s sole discretion. Notwithstanding the foregoing, the Grantee may
transfer, without the prior written consent of the Executive Director of the Grantor, its interest in
this Agreement, and its interest in the Temporary Basin Easement, to a homeowners association
that is responsible for the maintenance of common area property within the master-planned
community on the UPI Property.
3. Ownership of Retention Basins. At all times during the Term, the Retention
Basins shall be the sole and exclusive improvements of Grantee and shall not be deemed fixtures
or any other part of the real property comprising the SARDA Property. Grantee shall not be
responsible for the payment of any ad valorem property taxes associated with the SARDA Property
or the Temporary Basin Easement.
4. Construction, Maintenance and Removal. During the Term, Grantee shall be
solely responsible for all costs and expenses associated with the construction, installation, start-
up, operation, use, maintenance, inspection, testing, repair, reconstruction, replacement and (if
necessary) removal of the Retention Basins. Grantee shall maintain the Retention Basins in good
and safe condition during the Term, and, except with respect to a Termination of this Agreement
and the Temporary Basin Easement for the reason stated in Section 2.1(i), promptly following the
Termination of this Agreement and the Temporary Basin Easement remove the Retention Basins,
and restore the Temporary Basin Property to a condition as reasonably possible to that which
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preceded the construction of the Retentions Basins. If necessary and in order to facilitate the
Grantee’s obligation to remove the Retention Basins, the Grantor shall grant to Grantee a license
in scope and duration reasonably necessary to permit the Grantee to access the SARDA Property
for the purpose of removing the Retention Basins.
5. Indemnification.
5.1 Bodily Injury and Property Damage. During the Term, Grantee, for
itself, its successors and assigns, agrees to defend, indemnify and hold harmless the Grantor, the
City, and their respective board members, city council members, officers, consultants and
employees (the “Released Grantor Parties”) from and against any and all Claims asserted by any
person, including but not limited to Permitted Users, for bodily injury, death or property damage
arising directly or indirectly, or in any manner growing out of Grantee’s or Permitted Users’
activities on or about the SARDA Property. As used herein, “Claims” shall mean all claims, liens,
liabilities, damages, losses, costs and expenses of any kind or whatever nature. Notwithstanding
anything to the contrary contained herein, the provisions of this Section 5.1 shall survive the
termination of this Agreement.
5.2 Breach of Agreement. Grantee, for itself, its successors and assigns,
further agrees to defend, indemnify and hold harmless the Released Grantor Parties from and
against any and all Claims asserted by any person that result from Grantee’s or Permitted Users’
failure to comply with the terms of this Agreement, including Grantee’s or Permitted Users’ failure
to comply with Applicable Laws. Notwithstanding anything to the contrary contained herein, the
provisions of this Section 5.2 shall survive the termination of this Agreement.
6. Insurance. Grantee shall comply with the insurance requirements set forth in
Exhibit F.
7. Mortgagee Protection. No breach of any of the provisions of this Agreement nor
the enforcement of this Agreement shall defeat or render invalid the lien of any mortgage, deed of
trust, or other security interest against the SARDA Property or the UPI Property, but all of the
provisions of this Agreement shall be binding on and effective against any person whose title is
derived through foreclosure or otherwise; provided, however, that any such person shall have no
liability for any breach occurring before the date that such person succeeded to title. It is the
express intent of the parties that this Agreement and the easement granted herein shall at all times
be superior to the lien of any deed of trust, mortgage, security interest, or other monetary lien or
encumbrance that may exist against the SARDA Property or the UPI Property as of, or at any time
after, the date of this Agreement. Each party, after receipt of a written request from the other party,
shall use its best efforts to obtain written recordable agreements from its lenders and other holders
of such liens, if any, by which those lienors agree to subordinate their interests under those liens
to the rights and interests of the parties created by this Agreement.
8. Condemnation. In the event all or any portion of the Temporary Basin Property
is taken by condemnation, the parties shall, to the greatest practical extent, relocate the Temporary
Basin Property so that the use of the Temporary Basin Easement may continue hereunder, and
Grantee shall be entitled to receive all payments allocated or made with respect to its rights, and
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interests in, to or under this Agreement, the Temporary Basin Easement, and/or the Retention
Basins.
9. Estoppel Certificate. Within five (5) business days after receipt of a request for
an estoppel certificate from either party, the other party shall provide an estoppel certificate stating
that this Agreement has not been modified or, if modified, stating the nature of the modification,
and certifying that this Agreement, as so modified, is in full force and effect. The estoppel
certificate also shall identify any obligations then due or unperformed hereunder and shall contain
any additional information regarding the Agreement as may be reasonably set forth in the request.
10. No Dedication or Merger. Nothing in this Agreement shall be construed or
deemed to constitute a dedication or offer of dedication, express or implied, by Grantor or Grantee
of all or any portion of the SARDA Property, the UPI Property, the Temporary Basin Property, or
any interest therein, to any governmental entity or agency or utility or for any public use or purpose
whatsoever. Subject to the provisions of Section 2.1, the Temporary Basin Easement shall not be
terminated or extinguished by any merger of title or otherwise unless a written consent to such
termination, or a quitclaim deed, is executed by Grantee and recorded in the Official Records of
the County.
11. General Provisions.
11.1 Entire Agreement. Except as expressly set forth herein, this
Agreement, including all recitals and exhibits hereto, constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes any and all prior or
contemporaneous understandings, negotiations, representations, promises and agreements, oral or
written, by or between the parties, with respect to the subject matter of this Agreement. No
representations, inducements, promises, or agreements have been made in connection with this
Agreement by any party, or anyone acting on behalf of any party, other than those expressly set
forth herein.
11.2 Amendment. This Agreement may be amended, modified or
supplemented only by a writing signed by both parties.
11.3 Waiver. No waiver of any provision of this Agreement shall be binding
unless executed in writing by the party making the waiver. No waiver of any provision of this
Agreement shall be deemed to constitute a waiver of any other provision, whether or not similar,
nor shall any waiver constitute a continuing waiver unless the written waiver so specifies.
11.4 Counterparts. This Agreement may be executed in counterparts, each
of which shall constitute an original and all of which, when taken together, shall constitute one
and the same instrument.
11.5 Successors and Assigns. Subject to Section 2.2, this Agreement shall
be binding upon and shall inure to the benefit of the parties and their respective successors and
assigns, and all references in this Agreement to Grantor and Grantee shall be deemed to include
their respective heirs, legal representatives, successors and assigns. Subject to Section 2.1, the
provisions of this Agreement shall grant and establish an easement running with the Temporary
Basin Property, and shall be binding upon each successor owner thereof during its/his/her
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ownership of any portion of the Temporary Basin Property and the UPI Property. Any transferee
of title to the UPI Property shall be deemed, by acceptance of that title, to have automatically
assumed all obligations under this Agreement with respect to the Temporary Basin Property, but
only to the extent that those obligations accrue after the date of the transfer of title and have not
terminated due to the expiration of the Term. Effective upon such transfer, the transferor shall be
relieved of all further liability under this Agreement except for any liability which may have arisen
during its period of ownership and that remains unsatisfied as of the time of the transfer.
11.6 Attorneys’ Fees. The prevailing party in any action or proceeding to
enforce or interpret, or otherwise arising out of or relating to, this Agreement or any provision
thereof (including but not limited to any suit, arbitration, administrative hearing, bankruptcy or
appeal) shall be entitled to recover from the other party all of its costs and expenses, including but
not limited to attorneys’ and experts’ fees and costs.
11.7 Governing Law. This Agreement is entered into in and shall be
governed by and construed in accordance with the laws of the State of California, without reference
to its conflict of laws principles.
11.8 Severability. If any term or provision of this Agreement is ever
determined to be invalid or unenforceable for any reason, such term or provision shall be severed
from this Agreement without affecting the validity or enforceability of the remainder of this
Agreement.
11.9 Interpretation. Section headings in this Agreement are for convenience
of reference only and shall not affect the meaning or interpretation of any provision of this
Agreement. As used here: (a) the singular shall include the plural (and vice versa) and the
masculine or neuter gender shall include the feminine gender (and vice versa) where the context
so requires; (b) locative adverbs such as “herein,” “hereto,” “hereby,” and “hereunder” shall refer
to this Agreement in its entirety and not to any specific section or paragraph; (c) the terms
“include,” “including,” and similar terms shall be construed as though followed immediately by
the phrase “but not limited to;” (d) “person” shall mean any person or any private or public entity;
and (e) “shall,” “will,” and “must” are mandatory and “may” is permissive. The parties have
jointly participated in the negotiation and drafting of this Agreement, and this Agreement shall be
construed fairly and equally as to the parties, without regard to any rules of construction relating
to the party who drafted a particular provision of this Agreement.
11.10 Notices. Any notice required by this Agreement shall be in writing and
shall be deemed effective upon receipt or refusal of delivery by the appropriate party at the
following addresses (each a “Notice Address”):
if to Grantee: University Park Investor, LLC
801 San Ramon Valley Blvd., Suite F
Danville, CA 94526
Attention: Ravi Nandwana
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with a copy to
University Park Investor, LLC
4400 MacArthur Boulevard, Suite 700
Newport Beach, CA 92660
Attention: Rory Ingles
If to Grantor: Successor Agency to the Palm Desert
Redevelopment Agency
c/o City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
Attention: Executive Director
Either party may change its Notice Address by transmitting such change to the other party’s
Notice Address.
11.11 Recording and Further Assurances. The parties shall cause this
Agreement to be recorded promptly following their execution thereof, although such recording is
not a condition to the effectiveness of this Agreement. Each party shall execute and deliver any
additional documents and instruments and perform any additional acts that may be reasonably
necessary or appropriate to effectuate and perform the provisions of this Agreement.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement as of the
date first set forth above.
GRANTOR:
SUCCESSOR AGENCY TO THE PALM
DESERT REDEVELOPMENT AGENCY,
a public body
By:
Name:
Title:
GRANTEE:
UNIVERSITY PARK INVESTOR, LLC,
a Delaware limited liability company
By:
Name:
Title:
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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 )
)ss.
County of )
On ____________________, 20___, before me, ______________________, Notary
Public, personally appeared ___________________________, who 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 his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal. (Seal)
Notary Public
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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 )
)ss.
County of )
On ____________________, 20___, before me, ______________________, Notary
Public, personally appeared ___________________________, who 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 his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal. (Seal)
Notary Public
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EXHIBIT A
TO
EASEMENT AGREEMENT
LEGAL DESCRIPTION OF SARDA PROPERTY
All that real property situated in the City of Palm Desert, County of Riverside, State of California,
and more particularly described as follows:
[SEE ATTACHED]
EXHIBIT B
TO
EASEMENT AGREEMENT
DIAGRAM OF SARDA/UPI PROPERTY
[See Attached]
EXHIBIT C
TO
EASEMENT AGREEMENT
LEGAL DESCRIPTION OF UPI PROPERTY
All that real property situated in the City of Palm Desert, County of Riverside, State
of California, and more particularly described as follows:
[See Attached]
EXHIBIT D
TO
EASEMENT AGREEMENT
LEGAL DESCRIPTION OF TEMPORARY BASIN AREA
[See Attached]
EXHIBIT E
TO
EASEMENT AGREEMENT
DESCRIPTION AND DEPICTION OF RETENTION BASINS
[See Attached]
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EXHIBIT F
TO
TEMPORARY RETENTION BASIN
AND CONSTRUCTION EASEMENT AGREEMENT
INSURANCE REQUIREMENTS
MINIMUM SCOPE AND LIMIT OF COVERAGE. Prior to and at all times after executing
the Temporary Retention Basin and Construction Easement Agreement and during its Term,
University Park Investors, LLC (the “Grantee” thereunder) shall procure and maintain, at its sole
cost, for the duration of Grantee’s obligations hereunder, not less than the following coverage and
limits of insurance, with insurers and under policy forms satisfactory to the Successor Agency to
the Palm Desert Redevelopment Agency (the “Grantor” thereunder).
(a) Commercial General Liability Insurance written on an occurrence basis of at
least $1,000,000 per occurrence/$2,000,000 aggregate including ongoing operations, products and
completed operations, property damage, bodily injury, personal and advertising injury, and
premises/operations liability.
(i) Coverage for Commercial General Liability insurance shall be at least as
broad as Insurance Services Office Commercial General Liability coverage form (Occurrence
Form CG 00 01) or exact equivalent.
(ii) The policy shall contain no endorsements or provisions limiting coverage
for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against
another; (3) products and completed operations liability; or (4) contain any other exclusion
contrary to the Agreement.
(iii) The policy shall be endorsed to name the Grantor, its employees, directors,
officers, agents, and volunteers as additional insureds using ISO endorsement forms CG 20 10, 10
01 and 20 37, 10 01, or endorsements providing the exact same coverage.
(b) Commercial Automobile Liability Insurance written on a per occurrence basis
of at least $1,000,000 per occurrence for bodily injury and property damage.
(i) Coverage for automobile liability insurance shall be at least as broad as
Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage
Symbol 1, any auto)
(ii) The policy shall be endorsed to name the Grantor, its employees, directors,
officers, agents, and volunteers as additional insureds.
(c) Workers’ Compensation Insurance/Employers Liability as required by the State
of California with statutory limits or be legally self-insured pursuant to Labor Code section 3700
et seq. along with Employer’s Liability limits of no less than $1,000,000 per occurrence for bodily
injury or disease. The workers’ compensation insurer shall agree, using form WC 00 03 13 or the
exact equivalent to waive all rights of subrogation against the Grantor, its employees, directors,
officers, and agents.
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(d) Pollution Liability Insurance. Environmental Impairment Liability Insurance
shall be written on a Contractor’s Pollution Liability form or other form acceptable to the Grantor
providing coverage for liability arising out of sudden, accidental and gradual pollution and
remediation. The policy limit shall be no less than $1,000,000 dollars per claim and in the
aggregate. All activities of the Grantee contemplated under the Agreement shall be specifically
scheduled on the policy as “covered operations.” The policy shall provide coverage for the hauling
of waste from the SARDA Property to the final disposal location, including non-owned disposal
sites.
OTHER INSURANCE PROVISIONS
All of Grantee’s policies shall meet the following requirements and contain all specified
provisions/endorsements noted hereunder.
(a) Insurers shall provide the Grantor at least thirty (30) days prior written notice of
cancellation of any policy required hereby, except that insurers shall provide at least ten (10) days
prior written notice of cancellation of any such policy due to non-payment of premium.
In the event any insurer issuing coverage hereunder does not agree to provide notice of
cancellation to the Grantor, Grantee shall assume such obligation and provide written notice of
cancellation in accordance with the above. If any of the required coverage is cancelled or expires
during the term of this Agreement, Grantee shall deliver renewal certificate(s) including
endorsements to the Grantor at least ten (10) days prior to the effective date of cancellation or
expiration.
(b) The Commercial General Liability Policy and Automobile Policy shall each contain
a provision stating that Grantee’s policy is primary insurance and that any insurance, self-insurance
or other coverage maintained by the Grantor or any additional insureds shall not be called upon to
contribute to any loss.
(c) All required insurance coverages shall contain a provision, or be endorsed, to waive
subrogation in favor of the Grantor, its employees, directors, officers, and agents or shall
specifically allow Grantee to waive its right of recovery prior to a loss. Grantee hereby waives its
own right of recovery against the Grantor, its employees, directors, officers, and agents.
(d) If at any time during the term of the Agreement, any policy of insurance required
hereby does not comply with these specifications or is canceled and not replaced, the Grantor has
the right but not the duty to obtain the insurance it deems necessary and any premium paid by the
Grantor will be promptly reimbursed by Grantee.
(e) The Grantor may require Grantee to provide complete copies of all insurance
policies and endorsements in effect for the term of the Agreement.
(f) The general liability and automobile liability programs may utilize either
deductibles or provide coverage excess of a self-insured retention, subject to written approval by
the Grantor, and provided that such deductibles shall not apply to the Grantor as an additional
insured.
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(g) Claims made policies are not acceptable
(h) Grantee shall not allow any of its contractors, consultants, subcontractors or
subconsultants to commence work under the Agreement until Grantee has verified that contractors,
subcontractors, consultants, or subconsultants have secured all insurance required hereby,
including waivers of subrogation and other endorsements. Policies of commercial general liability
insurance provided by such contractors, consultants, subcontractors or subconsultants shall be
endorsed to name the Grantor, its employees, directors, officers, and agents as additional insureds
using ISO form CG 20 10 11 85, CG 20 38 04 13 or an endorsement providing the exact same
coverage. If requested by Grantee, the Grantor may approve different scopes or minimum limits
of insurance for particular contractors, consultants, subcontractors or subconsultants.
VERIFICATION OF COVERAGE. Prior to commencing any activity on the SARDA Property,
Grantee shall file with the Grantor evidence of insurance from an insurer or insurers certifying to
the coverage of all insurance required herein. Such evidence shall include original copies of the
Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements.
All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified
representative of the insurer and shall certify the names of the insured, any additional insureds,
where appropriate, the type and amount of the insurance, the location and operations to which the
insurance applies, and the expiration date of such insurance. All policies required shall be issued
by acceptable insurance companies, as determined by the Grantor. Each such policy shall be from
a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to
transact in the business of insurance in the State of California, or otherwise allowed to place
insurance through surplus line brokers under applicable provisions of the California Insurance
Code or any federal law.
LIABILITY NOT LIMITED. Defense costs shall be payable in addition to the limits set forth
herein. Requirements of specific coverage or limits contained herein are not intended as a
limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided
by any insurance. The limits set forth herein shall apply separately to each insured against whom
claims are made or suits are brought, except with respect to the limits of liability. Further the
limits set forth herein shall not be construed to relieve Grantee from liability in excess of such
coverage, nor shall it limit Grantee’s indemnification obligations to the Grantor and shall not
preclude the Grantor from taking such other actions available to the Grantor under other provisions
of the Agreement or law.
AVAILABLE LIMITS. Notwithstanding the minimum limits set forth above, any available
insurance proceeds in excess of the specified minimum limits of coverage shall be available to the
parties required to be named as additional insureds.
RESERVATION OF RIGHTS. The Grantor reserves the right to modify these requirements,
including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special
circumstances.