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HomeMy WebLinkAboutRes OB-044 - Propty 12(e) (2)Successor Agency to the Palm Desert Redevelopment Agency Long Range Property Management Plan PROPERTY 12(e) Desert Willow Lot Pad E Attachments PARKING AGREEMENT THIS PARKING AGREEMENT (this "Agreement") is entered into as of October 25. 2007 (the "Effective Date"), and is entered into by and between the PALM DESERT REDEVELOPMENT AGENCY ("PDRDA"), a public body, corporate and politic and JW MARRIOTT RESORT & SPA ("JWMRS"). RECITALS WHEREAS, PDRDA is the fee owner of that certain real property adjacent to the Desert Springs Marketplace at the Northwest corner of Cook Avenue and Country Club Drive (the "Property"); and WHEREAS, PDRDA desires to assist JWMRS to provide for temporary overflow parking on that portion of the Property identified on the Site Plan attached hereto as Exhibit "A" (the "Premises"), on the terms and conditions described below; NOW, THEREFORE, for good and adequate consideration, the sufficiency of which is hereby acknowledged, it is hereby mutually agreed as follows: AGREEMENT SECTION 1. Parkina Privileaes. PDRDA shall allow for parking privileges for the Term and upon the covenants, agreements, and conditions set forth herein. JWMRS shall have use of the Premises for parking as hereinafter provided. SECTION 2. Term and Effective Date. Commencing on the Effective Date and continuing thereafter on a month -to -month basis until terminated by either PDRDA or JWMRS upon thirty (30) days prior written notice ("Term"), unless terminated earlier in accordance with the provisions of this Agreement. SECTION 3. Use Payments. JWMRS shall pay to PDRDA on a monthly basis the amount of One Dollar ($1.00) for such parking privileges, payable on or before the first (1st) day of each month. SECTION 4. Use of the Premises. The Premises shall be used by JWMRS as an overflow parking area for the employees of JWMRS, and the Premises shall not be used for any other purpose whatsoever. Without limiting the foregoing, only passenger vehicles shall be parked on the Premises, and no construction vehicles or vehicles with more than two (2) axles shall be parked on the Premises or be given access thereto. No overnight parking shall be permitted by JWMRS. JWMRS shall not place any personal property on the Premises, or alter the Premises, without the prior written consent of PDRDA, which consent may be given or withheld in the sole and absolute discretion of PDRDA. JWMRS shall be solely responsible for providing security for the vehicles parked on the Premises and all persons accessing the Premises for parking, and P6402-000111000984v1.doc 1 G:\rda\Beth Longman\Yrigoyen\Desert Springs Resort and Spa - Parking Agrmnt.DOC JWMRS, at its sole cost and expense, shall hire and supervise all security personnel necessary to provide such security during all times in which vehicles are parked on the Premises. JWMRS, at its sole cost and expense, shall maintain and keep the Premises clean and free of debris. JWMRS shall be responsible for any damage to the Premises caused by JWMRS or JWMRS's invitees, and JWMRS shall promptly repair any such damage at JWMRS's sole cost and expense. JWMRS shall obtain any and all necessary permits required for parking on the Premises. JWMRS hereby assumes the risk of damage to personal or real property, or injury to persons in or on the Premises or arising from the use or occupancy thereof from any cause whatsoever, except when caused by the gross negligence or willful misconduct of PDRDA. Vehicles shall be allowed to park on the Premises only between the hours of 5:00 a.m. to 3:00 a.m. the following day. JWMRS shall provide PDRDA with a written weekly schedule of the days in each week in which vehicles will be parked on the Premises, and such schedule shall be given to PDRDA no later than the Friday preceding each such week. JWMRS shall cause all vehicles parking on the Premises to enter and exit the Premises from Desert Willow Drive. SECTION 5. Condition of the Premises. PDRDA shall have no obligation to maintain, repair or improve the Premises. SECTION 6. Possessory Interest Tax and Other Taxes. PDRDA hereby gives JWMRS notice, and JWMRS acknowledges receipt of such notice, as required pursuant to California Revenue and Taxation Code Section 107.6, that a leasehold interest may be created by this Agreement and may result in a possessory interest tax being levied against the Premises, and that in such event JWMRS shall be obligated to pay such tax. In addition, JWMRS shall be solely responsible for the payment of all other taxes attributable to JWMRS's occupancy and use of the Premises. SECTION 7. Assignment and Subletting. JWMRS shall not assign, or otherwise convey its rights under this Agreement without PDRDA's written consent, which consent may be given or withheld in the sole and absolute discretion of PDRDA. SECTION 8. Rights of Entry and Use. PDRDA shall have the right to enter and inspect the Premises at any time. PDRDA does not relinquish its right of ownership and does not convey a property interest through this Agreement and simply conveys parking rights. SECTION 9. Insurance. JWMRS, at its sole cost and expense, shall at all times during the Term keep in full force and effect the hereinafter described policies of insurance. All such policies shall be issued by companies acceptable to PDRDA, shall be issued by reputable companies authorized to do business and operating in the State of California, shall be rated A-X or better in Best's Insurance Guide, shall name PDRDA and the City of Palm Desert (the "City") as additional insureds, shall not provide for a deductible in excess of $5,000.00 without the prior written consent of PDRDA (and JWMRS shall be liable for payment of any such deductible in the event of any casualty), and shall be primary to any other insurance that may be available to PDRDA or City. All insurance policies shall contain a clause stating that the insurer will not cancel or reduce P6402-0001 \1000984v1.doc 2 G:\rda\Beth LongmanWrigoyen\Desert Springs Resort and Spa - Parking Agrmnt.DOC coverage's without first giving PDRDA thirty (30) days prior written notice. JWMRS will provide PDRDA with current evidence of such insurance, including a copy of all additional insured endorsements, on or before the Effective Date, and shall provide PDRDA evidence of renewal of such insurance at least thirty (30) days prior to the expiration date of such insurance, and will provide true and complete copies of such insurance policies upon PDRDA's request. JWMRS shall maintain comprehensive/commercial general liability insurance with respect to the Premises and any business operations conducted by JWMRS, its independent contractors and permitees, if any. Said insurance shall provide coverage's for bodily injury and property damage liability; personal and advertising injury liability; blanket contractual liability; independent contractors liability; and fire damage liability. PDRDA and City shall be named as an additional insured(s) under JWMRS's commercial liability insurance policy as provided under the standard insurance service office ("ISO") endorsement number CG201111 entitled, "Additional Insured —Managers of Premises." (or its equivalent). The policy or policies of insurance shall provide coverage on an "occurrence" basis (not on a "claims made" form) and shall provide limits of no less than the following: General Aggregate Limit: $2,000,000 Personal Injury Limit: $2,000,000 Each Occurrence Limit: $2,000,000 Fire Damage Limit: $50,000 These limits of insurance may be satisfied by the use of a combination of primary and excess liability or "blanket" insurance policies. In such event, JWMRS shall not be deemed to have complied with its obligations hereunder until JWMRS shall have obtained and delivered to PDRDA a copy of each such policy together with an appropriate endorsement or certificate applicable to and evidencing full compliance with the specific requirements of this Agreement (irrespective of any claim which may be made with respect to any other property or liability covered under such policy), and until the same shall have been approved by PDRDA in writing. PDRDA may from time to time require, with due regard to prevailing prudent business practices, that these limits be increased, or that additional liability coverage's be provided, as may be reasonably adequate for PDRDA's protection. SECTION 10. Surrender. JWMRS agrees, upon the expiration or earlier termination of this Agreement, to quit and surrender the Premises to PDRDA in dean condition and free of any personal property of JWMRS or its invitees (including any vehicles located on the Premises). SECTION 11. Default. In the event JWMRS shall be in default in the performance of any obligation on its part to be performed under the terms of this Agreement, and default continues for ten (10) days, following notice and demand for P6402-0001 \1000984v1.doc 3 G:\rda\Beth LongmanlYrigoyenlDesert Springs Resort and Spa - Parking Agrmnt.DOC correction thereof to JWMRS, PDRDA may (i) immediately terminate this Agreement by written notice to JWMRS and (ii) exercise any and all remedies granted by law. SECTION 12. Indemnification. JWMRS hereby agrees to indemnify PDRDA and City against and save PDRDA and City harmless from any and all losses, costs, damages, charges, liabilities, obligations, fines, penalties, claims, demands, or judgments and any and all expenses, including without limitation reasonable attorneys fees and expenses, court costs, and costs of appeal, settlement and negotiations, arising out of or in connection with: (a) the use of the Premises by JWMRS or JWMRS's employees or invitees; (b) the conduct of JWMRS's business or any activity, work or thing done, permitted or suffered by JWMRS in, on or about the Premises; (c) any failure to perform or observe any of the terms, covenants, conditions or provisions required to be performed or observed by JWMRS under this Agreement; and (d) any negligence by JWMRS or its employees or agents. In the event any action or proceeding is brought against PDRDA or City by reason of clauses (a) through (d) inclusive, JWMRS shall, at the request of PDRDA or City, assume the defense of the same at JWMRS's sole cost with counsel reasonably satisfactory to PDRDA or City, as appropriate. The indemnification obligations of JWMRS contained in this Section 12 shall survive the expiration or earlier termination of this Agreement. SECTION 13. Waiver of Relocation Benefits. JWMRS hereby waives as against PDRDA claims for any and all relocation assistance benefits including compensation to which it may later claim to be entitled under either state or federal relocation assistance statutes and regulations due to the expiration or early termination of this Agreement for any reason whatsoever. JWMRS acknowledges that this waiver may be used as a defense by PDRDA against any claim for state or federal relocation benefits by JWMRS based on its occupancy the Premises. JWMRS further acknowledges that it has been given an adequate opportunity to seek the advise of legal counsel regarding the rights being waived hereunder. JWMRS INITIALS: SECTION 14. Partial Invalidity. If any one or more of the terms, provisions, covenants or conditions of this Agreement shall to any extent be invalid, unenforceable, void or voidable for any reason whatsoever, none of the remaining terms, provisions, covenants and conditions of this Agreement shall be affected thereby, and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. SECTION 15. Notices. All notices, statements, demands, consents, approvals, authorizations, offers, designations, requests or other communications hereunder by either party to the other shall be in writing and shall be sufficiently given and served upon the other party if delivered personally or if mailed by United States certified or registered mail, return receipt requested, postage prepaid, and: P6402-000111000984v1.doc 4 G:\rda\8eth Longman \Yrigoyen\Desert Springs Resort and Spa - Parking Agrmnt.DOC If to PDRDA: Palm Desert Redevelopment Agency 73510 Fred Waring Drive Palm Desert, CA 92260 Attention: Executive Director If to JWMRS: Desert Springs Marriot Resort and Spa 74885 Country Club Drive Palm Desert, CA 92260 Attention: or to such other addresses as each respective party may from time to time designate by notice in writing. SECTION 16. Section Headings. All section headings contained herein are for convenience of reference only and are not intended to define or limit the scope of any provision of this Agreement. SECTION 17. Amendment. This Agreement may only be amended by a written instrument duly authorized and executed by PDRDA and Agency. SECTION 18. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all together shall constitute but one and the same agreement. SECTION 19. Binding Effect. This Agreement shall be binding upon and inure to the benefit of PDRDA and JWMRS and their respective successors, assigns and successors in interest. IN WITNESS WHEREOF, the parties have caused this Parking Agreement to be executed on the date first written above. PDRDA: JWMRS: PALM DESERT REDEVELOPMENT JW MARRIOTT RESORT & SPA AGENCY, a public body, corporate and politic By: By: Name: Name: Title: Title: ATTEST: Rachelle D. Klassen, Secretary P6402-000111000984v1.doc 5 G•\rda\Beth Longman\Yrigoyen\Desert Springs Resort and Spa - Parking Agrmnt.DOC EXHIBIT A SITE PLAN P6402-000111000984v1.doc A-1