HomeMy WebLinkAboutPM 34211-1 - Imprvmnt and Drainage Chnnl Maint Agmts CITY OF PALM DESERT
PUBLIC WORKS DEPARTMENT
STAFF REPORT
REQUEST: Adopt Resolution # 09-79 Approving Parcel Map No. 34211-1
and the Improvement Agreement Related Thereto, and Authorize
the Mayor to Execute a Drainage Channel Maintenance Agreement
SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works
APPLICANT: Matthew Johnson
Wilson Johnson CRE, Inc.
45-445 Portola Avenue, Suite 5
Palm Desert, CA 92260
DATE: November 12, 2009
CONTENTS: Resolution
Conditions of Approval
Tentative Parcel Map 34211
Final Parcel Map 34211-1
Maintenance Agreement
Purchase and Sale Agreement
Subdivision Improvement Agreement
Vicinity Map
Recommendation
1. Waive further reading and adopt Resolution No. 09-�9 , approving
Parcel Map No. 34211-1 and the Improvement Agreement related
thereto; and
2. By Minute Motion, authorize the City Manager to execute a Drainage
Channel Maintenance Agreement
Backqround
Parcel Map 34211-1 is the Phase 1 map of the Tentative Parcel Map 34211, bounded
by Cook Street, Union Pacific Railroad and Technology Drive, and is north of Gerald
Ford Drive. The Tentative Map was approved by the Planning Commission on April 18,
2006, and will expire on April 18, 2012. This map is substantially the same as that
Staff Report
Drainage Channel Maintenance Agreement
November 12, 2009
Page 2 of 3
portion of the Tentative Map that this map encompasses with one less parcel than the
Tentative Map.
Those conditions of approval related to the map have been satisfied. The map
conforms to the requirements of the Subdivision Map Act and City ordinances except for
the subdivider's request that the improvement bonds be deferred until after Council's
approval. The City Attorney has agreed to the request, which allows the subdivider to
avoid paying unnecessary bond premiums should the Final Parcel Map not be
approved. Therefore, Council's approval and subsequent recording of the map are
subject to receiving bonds and approval thereof by the City Attorney.
The Phase 1 map provides for the subdivision of 15.36 acres out of 83.2 acres of the
approved Tentative Map into four commercial parcels and one lot to extend Technology
Drive to the west end of Phase 1, and one lot for the Mid-Valley Channel. Parcel 1 of
the Tentative Map, having 36.4 acres, was conveyed to the City for park purposes. The
City entered into a Purchase and Sale Agreement dated March 3, 2006, for the
purchase of the park parcel. The Conditions of Approval state that this map shall be
subject to the terms of the Purchase and Sale Agreement. The property owner to the
south claims that per their agreement with the subject map's owner, Technology Drive
should be dedicated and constructed entirely within this map. However, the Purchase
and Sale Agreement with the City, the Conditions of Approval, and the approved
Tentative Map all show or require Technology Drive to be dedicated and constructed
half on this map and half on the property to the south. It is a typical practice to center a
public road on a common property line for access from both sides of the road.
Additionally, the burden of right-of-way dedication is not borne by only one property
owner. For more than a year, staff and the City Attorney have attempted several times
to get the two owners together to resolve the Technology Drive alignment issue.
Nevertheless, these attempts were unsuccessful.
Because the owner/subdivider has not yet lined the Mid-Valley Channel with concrete,
and most of the land within the Tentative Map that adjoins the channel is not being
subdivided yet (89 percent of the channel frontage), the City should enter into an
agreement with the owner and successors to insure that the channel will be
appropriately maintained until which time as the channel is lined and the work and
dedications are accepted by the City.
The bike path easements as conditioned are being dedicated on the map except for
over Parcel 2 because the proposed Holiday Inn has demonstrated that a flat enough
area exists at the toe of the Cook Street ramp slope to accommodate a bike path in the
public right-of-way along the east side of Parcel 2. Additionally, City Council approved
the Holiday Inn's site plan at their meeting of October 23, 2008 (P.P./CUP 08-251).
G:1PubWorkslSta(f Reports120091Novembei 12107 Appiove PM 34271-1 Resolufion and Orainage Channel Mainfenance AgreementlSR Reso and Diainage Channel Mainf Agrmf.docx
Staff Report
Drainage Channel Maintenance Agreement
November 12, 2009
Page 3 of 3
Because each parcel owner will be responsible for the maintenance of landscaping on
their parcels and on the public parkway, no property owners' association will be formed
and, therefore, there will be no CC&Rs as mentioned in the Conditions of Approval.
Fiscal Analysis
There is no fiscal analysis associated with this action.
Submitted By:
'� D�
�
� � ���Ur
R. Page Garner, L.S Bo Ch n, P. E.
Sr. Engineer/City Surveyor City Engineer
Departm nt d:
.�
C-''� r
Mark Gree ood, P.E. David J. rwin
Director of Public Works City Attorney
Approval:
John M. Wohlmuth
City Manager
CITY COUNCiLAC ON
APPI20VFD � DFNiF,D __...
RCCC[VED OTHER n'�Qr
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MI�:ET(NG DATE ' � '
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NOES:
AI3SG,NT:
Ai3S'TAIN:
VI;RIFIED BY: �
Origina!on File with Ci lerk's Office
* Appproved the reco�endations, with Res. No.
09-79 amended as presented for the record. 5-0
6:IPubWorkslStaff Report5120091November 12107 Appiove PM 34211-1 Resolution and Orainage Channel Maintenance AgreementlSR Reso and D�ainage Channel Maint Agrmtdocz
RESOLUTION NO. 09-79
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, APPROVING PARCEL MAP NO. 34211-1 AND
THE IMPROVEMENT AGREEMENT RELATED THERETO
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM DESERT,
CALIFORNIA, DOES HEREBY RESOLVE, DECLARE, DETERMINE, AND ORDER AS
FOLLOWS:
SECTION 1. Parcel Map 34211-1 of the City of Palm Desert, California, is
hereby approved as the official subdivision map of said Parcel Map subject to conditions
of the Tentative Map.
SECTION 2. The Mayor and City Clerk are authorized to execute on behalf of
the City a Subdivision Improvement Agreement guaranteeing completion of the public
improvements required by law.
SECTION 3. The City Engineer is authorized to receive the improvement
security, as required by law, on behalf of the City, subject to the approval of the City
Attorney as to form.
SECTION 4. The City Engineer is directed to process the Parcel Map for
recording upon receipt of the required improvement security and the payment of all
fees.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Palm
Desert, California, at its regular meeting held on the 12th day of NOVEMBER, 2009, by
the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
ROBERT A. SPIEGEL, MAYOR
ATTEST:
RACHELLE D. KLASSEN, CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
, ;
` PLANNING COMMISSION RESOLUTION NO. 2391
CONDITIONS OF APPROVAL
CASE P10. PM 34211
Department of Communitv Development:
1. The development of the property shall conform substantially with exhibits on file with
the Department of Community Development, as modified by the following conditions.
2. Recordation of map occur within one year of the date of this approval unless an
extension of time is granted; otherwise said approval shall become null, void and of no
effect whatsoever.
3. The development of the property described herein shall be subject to restrictions and
limitations set forth herein which are in addition to all municipal ordinances and state
and federai statutes now in force, or which hereafter may be in force.
4. Prior to issuance of a building permit for construction of any use contemplated by this
approval, the applicant shall first obtain permits and/or clearance from the foilowing
agencies:
Coachella Valley Water District
City Fire Marshal
Public Works Department
Evidence of said permit or clearance from the above agencies shall be presented to
the Department of Building & Safety at the time of issuance of a building permit for the
use contemplated herewith.
5. Development of lots contained within the subject map shall be subject to the provisions
of DA 97-2
6. Development of lots contained within the subject map shail be subject to the provisions �
of the Purchase and Sale Agreement between the City of Palm Desert and La Quinta
Viliage Business Center, LLC dated March 3`d, 2006.
Department of Public Works:
GENERAL
1. Landscaping maintenance of any common areas shall be provided by the property
owners association. Landscape treatment shall be water efficient in nature and shall
be in accordance with the City of Palm Desert landscape design standards. Appiicant
shall be responsible for executing a declaration of Conditions, Covenants and
3
'. . .
PLANNING COMMISSIOIV RESOLUTION NO. 2391 '
Restrictions, which declaration shall be approved by the City of Palm Desert and
recorded with the County Recorder. The declaration shall specify: (a) the appiicant
shail oversee the formation of a property owners association; (b) the property owners
association shall be formed prior to the recordation of the Map; and (c) the
aforementioned landscaping shall be the responsibility of the property owners
association. Landscaping plans shall be submitted for review simuitaneously with
grading plans.
2. A complete preliminary soils investigation, conducted by a registered soils engineer,
shali be submitted to, and approved by, the Department of Public Works prior to the
issuance of a grading permit.
BOIVDS AND FEES
3. Drainage fees, in accordance with Section 26.49 of the Palm Desert Municipal Code
shall be paid prior to recordation of final map minus the cost of the drainage
improvements made.
4. A standard inspection fee shall be paid prior to issuance of grading permits.
DESIGN PLANS
5. Storm drain/retention area design and construction shall be contingent upon a
drainage study prepared by a registered civil engineer that is reviewed and approved
by the Department of Public Works prior to start of construction. Project is required to
retain on-site the incremental increase in drainage for a 100-year storm and shall
include the property identified in the purchase and sale agreement between the
applicant and City.
6. Complete grading and improvement plans and specifications on electronic files shall
be submitted to the Director of Public Works for checking and approval prior to
issuance of any permits.
7. Improvement plans for utility systems shail be approved by the respective provider or
service districts with "as-builY' plans submitted to the Department of Public Works prior
to project final. Utility plans shail be submitted to the public works department for
improvements in the public right of way prior to issuance of any permits.
8. Complete parcel map shall be submitted as required by ordinance to the Director of
Public Works for checking and approval prior to the issuance of any permits.
9. Any and all offsite improvements shall be preceded by the approval of plans and the
issuance of valid encroachment permits by the Department of Pubiic Works.
4
PLANNING COMMISSION RESOLUTION NO. 2391
10. Pad elevations, as shown on the parcel map are subject to review and modification in
accordance with Chapter 26 of the Palm Desert Municipal Code. a-<-%
j�n °
���� 5t,� � ;
11. Waiver of access to Cook Street and Portola Avenue, except at approved locations, r r M^ N
shall be granted on the final map.
REQUIRED CONSTRUCTION
12. Fuil public improvements required by Sections 26.40 and 26.44 of the Palm Desert
Municipal Code, shall be installed in accordance with applicable City standards.
� Half-Street improvement of Technology Drive to the approval of the Director of Public�—
Works.
• Offer of dedication of the mid-valley retention channel providing the retention for this
subdivision with the property owner responsible for maintenance. An easement shall
be provided for public utilities and bikepath in this area as shown at time of recordation
if dedication is not made. At time of dedication the channel shali be lined.
Rights-of-way necessary for the installation of the above referenced improvements
shall be dedicated to the city prior to the issuance of any permits associated with this
project.
13. All public and private improvements shall be inspected by the Department of Public
Works and a standard inspection fee shail be paid prior to issuance of grading permits.
No occupancy permit shall be granted until improvements have been completed.
SPECIAL CONDITIONS
14. A minimum 8' wide level easement adjacent to the Cook Street Overpass to provide a
future connection to a bikepath along the Mid-Valley Storm Channel, and a 12' wide
easement along the southerly property line of Parcel 2 to connect with the future park
site. The 12' easement shall also be required of the property to the south of Parcel 2
when that property develops.
15. Parcels 18-22 shall be responsible for landscape and maintenance of the adjacent
slope extending to Cook Street.
16. Any other language within the Purchase and Sale Agreement of March 3, 2006 iy
entered into between the City and Applicant shall supercede these conditions to the ��
discretion of the Director of Public Works.
//
5
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IN THE CITY OF PA1.6f DESERT. SHEET 4 Of 4 SHEETS
CWNTY OF RNERSIDE, STATE OF CALIFORNIA
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BEING A SUBDMSION OF POR'f10N5 OF THE SOIITH ONE-HAW ��y:�°'t
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RECORDING REQUESTED BY AND
WHEN RECORDED MAILTO:
City Clerk
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
DRAINAGE CHANNEL MAINTENANCE AGREEMENT
This Drainage Channel Maintenance Agreement(the "AgreemenY') made and entered this
21 day of[monthj September, 2009, by and between the City of Palm Desert, a municipal
corporation, hereinafter referred to as "CITY" and William Hay and Denise DuBarry-Hay, husband and
wife as joint tenants,Scott R. Wilson, an unmarried man, and Matthew V.Johnson and Linda Johnson,
trustees of the Johnson Family Trust, Lost Horse Mountain, LLC, a California Limited Liability Company,
hereinafter referred to as"PROPERTY OWNER". CITY and PROPERTY OWNER are sometimes hereinafter
individually referred to as a "party' and/or collectively referred to as the "parties".
RECITALS
WHEREAS, PROPERTY OWNER is owner of that certain real property located in portions of the
south half of Section 28 and the �orth half of Section 33, all in Township 4 South, Range 6 East,San
Bernardino meridian, in the City of Palm Desert, County of Riverside, State of California,Assessor's
Parcel Number(s)694-190-002, 694-190-009, and 649-120-014, as described in Exhibit "A", hereinafter
referred as the "Property",and
WHEREAS, on the CITY council of Palm Desert approved Parcel map no. 34211-1
as Resolution No. , and on April 18, 2006 the Planning Commission of Palm Desert approved
Tentative Parcel Map no. 34211 and
WHEREAS, water from irrigation and storm flows from a portion of the property drains, or will
drain when the property is developed,via underground pipes to an earthen channel for water retention
purposes, and
WHEREAS,the CITY desires assurance that PROPERTY OWNER,future parcel owners and
successors will maintain said earthen channel in a good workmanlike manner, and
WNEREAS, PROPERTY OWNER is desirous of maintaining said earthen channel for adequate and
proper drainage, until such time as the channel is lined in concrete and approved and accepted by the
City,
NOW THEREFORE, the parties hereto mutually covenant and agree as follows:
TERMS
1. PROPERTY OWNER at its sole cost and expense will maintain the channel including, but not limited to
remedial grading due to erosion and drifting sand within Lot B as described herein in Exhibit B.
PROPERTY OWNER shall routinely clean the channel of all debris twice a year and keep all associated
maintenance records. Upon request from the City, PROPERTY OWNER shall provide such records.
2. It is the CITY'S and PROPERTY OWNER'S intent that should any right,title or interest in and to the
property,or a part thereof, be sold or otherwise co�veyed,that the obligations set forth in this
Agreement shall automatically become the obligations of the new title or interest holder including all
subsequent parcel owners of parcel map 34211-1 and all future maps under tentative parcel map 34211.
The obligations set forth in this Agreement shall bind PROPERTY OWNER's heirs, successors and assigns
of the property and the covenants contained herein shall run with the property,and those covenants
shall benefit each and every other parcel of property located in the CITY.This Agreement-shall be
�otarized and recorded with the Riverside County Recorder's Office.
3. In the event that PROPERTY OWNER fails to comply with the terms of this Agreement, the CITY shall
provide PROPERTY OWNER, or PROPERTY OWNER's successors in interest, with a thirty (30) day written
notice of default,which notice shall specify the nature of the default. In the event that PROPERTY
OWNER or his successors in interest fail to cure the default within the said thirty(30) days, provided
following receipt of said notice, PROPERTY OWNER has not commenced and is not diligently pursuing
cure of said default, the CITY may immediately take steps to cure the default by curing the default itself
and imposing a lien, pursuant to law, against the Property for the cost of such cure.The imposition of a
lien for failure to provide Drainage Channel maintenance as required under this Agreement shall be
applied to the Property.
4. If legal proceedings are necessary to enforce or interpret the terms of this Agreement, the prevailing
Party, as determined by the court, shall be entitled to recover from the other Party all costs and
expenses of the proceedings, including reasonable attorney's fees and related costs.
5. PROPRTY OWNER hereby agrees to indemnify, defend and hold the CITY and its officials, officers,
agents, servants and employees harmless from any and all liabilities, claims, demands, debts, suits,
actions and causes of actions, including but not limited to, property damage, personal injury or wrongful
death, arising out of or in any manner connected with any act or omission of PROPERTY OWNER,or its
officers, agents, servants, employees, done or performed pursuant to the terms and provisions of this
Agreement.
6. PROPERTY OWNER, individually as the curr.ent owner of the Property and on behalf of PROPERTY
OWNER's heirs, successors and assigns of the Property, does hereby grant to the CITY, as grantee, a lien
on the Property, pursuant to law, which lien shall be enforced in the amount of all fees and costs
incurred by CITY in performing PROPERTY OWNER's obligations hereunder upon PROPERTY OWNER's
failure to perform pursuant to paragraph 3.
7. Any and all notice, including, but not limited to a notice of default sent or required to be sent to the
Parties to this Agreement will be mailed to the following addresses:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
Attn: City Clerk
Matthew V.Joh�son
45-445 Portola Ave,Suite 5
Palm Desert, CA 92260
IN WITNESS WNERE OF,the Parties have executed this Agreement as of the date first above
written.
[Signatures on Following Page]
EXHIBIT"A"
LEGAL DESCRIPTION
AFFECTED PROPERTY OWNER'S PROPERTY
Parcels 1 through 4 inclusive, Lot B, and the parcel shown as "Designated Remainder" of Parcel
Map No. 34211-1, in the City of Palm Desert, County of Riverside, State of California, as per map
filed in Book of Pages of Parcei Maps in the office of the County Recorder of said
County of Riverside.
EXHIBIT"B"
LEGAL DESCRIPTION
DRAINAGE CHANNEL PARCEL
Lot "B", Parcel map no. 34211-1 in the City of Palm Desert, County of Riverside, State of
California, as per map filed in book_, pages_of parcel maps in the office of the County
Recorder of said County.
CITY: PROPERTY OWNER:
THE CITY OF PALM DESERT, William Hay and Denise DuBarry-Hay,
husband and wife as joint tenants
a California municipal corporation
By: William
By: Date:
City Manager ������ --
Date: �
By: Denise uBerry-Ha
Date: �U � � (�
ATTEST: Scott R. ' , an unmarried man
�e� �. �����
By: By: Scott R. Wilson
City Clerk Date: /g/j 3 �D�
Matthew V.lohns and Linda Johnson,
ust s of the John on F ily Trust
�
By: Matthe V. ohnson
Dat : � � i d
�.._.
� �
B : Lind n on
Date: ldaZO�Go
Lost Horse Mounta} , LLC, a California
Li 't d iability Com any
APPROVED AS TO LEGAL FO M - �
BEST BEST & KRIEGER LLP By: Matthe .J h son
Date: �b
� �
r
STATE OF CALIFORNIA }ss.
COLTNTYOF �li���Q��;�� }
On ��- �-�q before me,
�u�a�� vinnu �P -Tn.,l�� c ti n� , a notary public, personally appeared
�� \�C�x-Y who proved to me on the basis of
satisfactory evidenbe to be the person whose name is subscribed to the within instrument and
acknowledged to me that he(,s�e executed the same in his/kerauthorized capacity, and that by
hislker signature on the instnunent the person or the entity upon behalf of which the person
acted, executed the instrument.
I certify under PENALTY OF PEItJLTRY under the laws of the State of California that the
foregoing pazagraph is true and correct.
WITNESS my hand and official seal.
RYAN MARIE TORLAN�
CoMM.# 1866444 �p
Signature NOTARYPIIBLIFCALIFOPNIA Ui
N 0 Riv�asio[Counrr
� MY COuu.E%P.$Ev.27.2U13''
(This azea for official notarial seal)
P6401-1032\1112892v2.doc
STATE OF CALIFORIVIA }ss.
COUNTY OF �����S�cQ Q }
On , before me,
T� Ct'1 a notary public, personally appeared
t { — who proved to me on the basis of
satisfactory evidence to be the p rson wh se name is subscribed to the within instrument and
acknowledged to me that�/she executed the same in JaaS/her authorized capacity, and that by
b�S/her signature on the instrument the person or the entity upon behalf of which the person
acted, executed the instrument.
I certify under PENALTY OF PER.NRY under the laws of the State of California that the
foregoing pazagraph is true and correct.
WITNESS my hand and official seal. .._._.
RYAN MARIE TORLAND
N CoMM.#1866444
NDiARYPIIBUC�CAqFORNU UI
RIYERSIOE CWNIY
Mr Cowu.Exp.Sev.27,20t3-�
Signature
(This azea for official notarial seal)
P6401-1032U 112892dL.doc
STATE OF CALIFORNiA }ss.
COUNTY OF��JQy��„nf� Q }
� I��1'�I hQl before me,
/�/1�.�/�0-1'-"�,�I�a �n�� , a notary public, personally appeared
� �',¢Z��� (,�� �Sl�v� who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/s� executed the same in his/� authorized capacity, and that by
his/h�psignature on the instrument the person or the entity upon behalf of which the person
acted, executed the instrument.
I certify under PENALTY OF PERJLJRY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
RYAN MARIE TORLAN�
COMM.# 1866444 t^
�� " /� N � NOTAftYPUALIFCALIiOANIA VI
�/ RIVERSIUE CWNiY
Signature /�I/� �V U'�AP, pd�� _o�C Mr Cou�.Eta.Se7 27,2U73"'
(This azea for official notarial seal)
P6401-1032\I1]2892dL.doc
STATE OF CALIFORIVIA }ss.
COUNTYOF �J2{'S�GQ� }
On before me,
O a notary public, personally appeared
Mn`� �o� �I . ��Sc�ln���� who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/ske executed the same in his/�authorized capacity, and that by
his/Yier signature on the instrument the person or the entity upon behalf of which the person
acted, executed the instrument.
I certify under PENALTY OF PER7CTRY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
� RYAN MARIE TORLAND
COMM.# 1866444
(� NOiAflYPUBIIC�CAtIPORNIA N
RIVER910E COUNtt
.SIgI13tUIe lA/x vl L�[JA/�.� A A� Mv CwY,ExP.$EP.27,2013�
(This azea for official notazial seal)
P6401-1032\I 112892dL.doc
STATE OF CALIFORNIA }ss.
COUNTY OF ��J����Q }
On QG�rDP� �j �.� before me,
1��IGl✓1 (Vl Q c'l f'. 1 o�C'�C,1d1CQ , a notary public, personally appeared
�.a�1C�(:� ��aln�SOC� who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instnxment and
acknowledged to me that 1�/she executed the same in tt't�/her authorized capacity, and that by
�/her signature on the instrument the person or the entity upon behalf of which the person
acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITTIESS my hand and official seal.
RYAN� MARIE TORLAN�
N COMM.# 1866444 r^
0 NDTARYPIIBtiC�CALIFOANIA Vi
RIVERSIOE COUNtt
Signature MY COMM.EXP.SEP.27,2013"�
(This azea for official notazial seal)
P6401-1032U 112892JL.doc
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��
. ....�. � �,:
AGREEMENT OF PURCHASE ANID 5ALE
AND �SCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT (the "AgreemenY') is made and entered
as of the�iday of March, 2006 by and between The City of Palm Desert, a California
municipa corporation("Buyer") and La Quinta Village Business Center, LLC, a Califoinia
limited liability company ("Seller").
RECITALS
A. Seller is the owner of that certain real properry consisting of approximately 82.5
acres of vacant land located between Portola Avenue and Cook Street and bordered to the north
by Interstate Highway 10 in the City of Palm Desert (the "C�"), County of Riverside (the
"Coun "), State of California, as more particularly described on Exhibit"A" attached hereto
(the "Land").
B. Tentative Parcel Map 30042, covering the eastern portion of the Land, was
approved by the City ("TPM 30042"), but a final Pazcel Map for TPM 30042 was never
recorded.
C. The Land is encumbered by a Deed of Trust, Security Agreement and Fixture
Filing with Assignment of Leases, Rents and Agreements dated January 22, 2003 and recorded
in the Official Records of the County on February 26, 2003 as Document No. 2003-132532,
naming Seller as Trustor and Art Palm LLC as Beneficiary(the"Deed of TrusY). The Deed of
Trust secures the payment of that certain Promissoiy Note Secured by Deed of Trust dated
January 22, 2003, fi•om Seller to Art Palm, LLC in the original principal amount of$5,649,913
(the"Art Palm Note"). A copy of the Art Palm Note has been provided to Buyer and is
incorporated herein by reference.
D. The Land may also be encumbered by a Reconveyance Agreement dated January
22, 2003, between Art Palm and Seller("Reconveyance AgreemenP'), a memorandum of which
was recorded February 26, 2003, in Official Records of Riverside County as Document No.
2003-132534. The Reconveyance Agreement requires the conveyance to Art Palm LLC of a
small portion of the Property(as defined herein) if certain conditions are met and if such
properiy is not conveyed to the City of Palm Desert as a right of way extension for Portola
Avenue or pursuant to a proposed parcel map (see Reconveyance Agreement for details). A
copy of the Reconveyance Agreement has been provided to Buyer and is incoiporated herein by
reference.
E. A dispute has arisen between Seller and Art Palm LLC regarding the amount
owing under the Art Palm Note and the failure of Art Palm LLC to perform certain of its
obligations under the Art Palm Note, including Art Palm LLC's faihu�e to record the final Parcel
Map for TPM 30042 and to complete certain improvements to the Land required under the Art
Palm Note. This dispute is currently the subject of a pending lawsuit between Art Palm LLC
and Seller in the United States District Court Northern District of Texas, Dallas Division (Case
No. 3-OSCV461-K) (the "Federal Case") and formerly in the State District Court, Dallas County,
Texas (Cause No. OS-03827) (the "State Case") (collectively, the "Pending Litigation"). The
3/3/2006 1
, . ',.,.. ,..
Pending Litigation is currently stayed pursuant to an interim agreement between Seller and Art
Palm LLC, while those parties are attempting to negotiate a settlement.
�6.5�
F. Buyer has agreed to purchase from Seller, and Se r has agreed to sell to Buyer,
the western portion of the Land consisting of approximately acres (the "Properry"). A rough
sketch showing the approximate location of the Property is attached hereto as Exhibit"B". The
exact location and legal description of the Property will be reflected in Parcel Map 34211 as
Parcel 1, as prepared by Seller and approved by Buyer pursuant to Section 6.7 below. Seller
sha11 retain the remaining portion of the Land consisting of approximately 46 acres (the "Seller's
Retained Property").
G. New parcel map subdividing the Seller's Retained Property and separating the
Property frorn the rest of the Land so that it is a separate legal parcel will need to be prepared and
filed with the City, approved by the City, and recorded with the County. The City will require,
as a condition to closing, that the Properry be released from the Art Palm Deed of Trust and any
liens azising out of the Pending Litigation.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and
other good and valuable consideration, Buyer and Seller agree as follows:
AGREEMENT
1. Purchase and Sale. At the Close of Escrow(defined hereinbelow), Seller agrees
to sell the Properry to Buyer and Buyer agrees to purchase the Property from Seller, for the price
and upon all terms and conditions set forth herein.
2. Purchase Price. The total purchase price for the Property, including all
improvements located thereon shall be Thirteen Million Dollars ($13,000,000) (the "Purchase
Price") payable as follows: (1) One Hundred Thousand Dollars ($100,000.00) upon the opening
of escrow and an additional Five Million Nine Hundred Thousand Dollars ($5,900,000.00) upon
the expiration of the Due Diligence period (the "DeposiY') to be credited toward the purchase
price, and (2) Seven Million Dollars ($7,000,000.00) at close of escrow. The Deposit shall be
released to Seller upon the last to occur of the following:
2.1 Expiration of the Due Diligence Period(as defined in Section 4.2(a) below), unless
Buyer has elected to terminate this Agreement prior to that time;
2.2 Dismissal of the Pending Litigation(as defined hexein);
2.3 Reconveyance of the Deed of Trust from title to the Properry.
Seller may request that the pay off of the Art Palm Note (including any amendment or
replacement of that note in favor of ART Palm) be handled through Escrow in satisfaction of the
conditiori set forth in Section 23 above. Specifically, once the conditions set forth in Section 2.1
and 2.2 have been satisfied, Seller may request Escrow Holder to arrange for the pay off of the
Art Pahn Note and reconveyance of the Deed of Trust(including any deed of trust in favar of Art
Palm with which the Deed of Trust may be replaced) using the funds constituting the Deposit.
3/3/2006 2
, , .
Escrow Holder shall not release any portion of the Deposit until it can cause the reconveyance of
the Deed of Trust from the Property, unless the Deed of Trust(and any replacement thereo fl has
been previously reconveyed from the Properiy. Once the ART Palm Note has been paid and the .
Deed of Trust reconveyed (and the conditions in Section 2.1 and 2.2 have been satisfied), any
remaining balance of the Deposit shall be released to Seller as provided in this Agreeinent.
Notwithstanding its release to Seller (or use to pay off the ART Palm Note),the Deposit shall
remain fixlly refundable to Buyer in the event the Close of Escrow(as defined herein) shall fail to
occur. All funds shall be held in an interest bearing account for benefit of Buyer.
3. Title Renort. Immediately following the opening of escrow(as defined
hereinbelow), Seller shall order a current preliminary report("Prelim") from Fidelity National
Title Company (the"Title Company"). Within ten (10) days following the receipt of the Prelim,
Buyer shall notify Seller of any exceptions disclosed therein which, in Buyer's sole discretion,
adversely affect Buyer's intended use of the Property. Any exception not disapproved in writing
within said ten (10) day period shall be deemed approved by Buyer, and shall constitute a
"Permitted Exception" hereunder, except for the Deed of Trust (defined above), wluch shall be
deemed to be a disapproved exception. All matters created by or on behalf of Buyer shall
constitute a Permitted Exception. Seller shall, without warranty, and without obligation to
expend any funds or provide other consideration, use commercially reasonable efforts to cure
such title discrepancies to which Buyer has raised objection. In the event and at such time as
Seller determines that it will be unable to cause any such title discrepancy to be removed on or
before Closing Date (as defined herein), Seller shall notify Buyer in writing of any disapproved
title exceptions which Seller is unable to cure, and Buyer shall then, within twenty(20) days
thereafter, elect, by giving written notice to Seller and Escrow Holder (as defined herein below),
(a) to terminate this Agreement, or (b)to waive its disapproval of such exceptions, in which case
such exceptions shall then be deemed to be Permitted Exceptions. Buyer's failure to give such
notice shall be deemed an election to waive the disapproval of any such exception. In the event
Buyer elects to tenninate this Agreement under(a) above, Seller shall promptly return the
Deposit and Buyer and Seller shall each pay one-half of any title cancellation and escrow
cancellation fees and both parties shall be relieved from any liabiliYies and/or obligations under
this Agreement, except for any indemnity obligations arising hereunder. If Seller provides Buyer
with written notice of disapproved title exceptions which Seller is unable to cure less than twenty
(20) days before the Closing Date, then the Closing Date shall be automatically extended for an
additional period to allow Buyer its full twenty (20) days thereafter in which to terminate this
Agreement or waive its disapproval, as provided above.
In the event Seller is unable to remove the Reconveyance Agreement from title to the Properiy
following the City's disapproval thereof, as provided above, and the City elects to waive such
disapproval, ffien the City shall assume and agree to perform Seller's obligation under the
Reconveyance Agreement, and Seller shall be released from further obligation with respect
thereto.
4. Buver's Conditions of Purchase. Buyer's obligation to perform this Agreement
and acquire the Property shall be subject to the satisfaction of the following conditions, which
are for Buyer's benefit only. In the event any of the following conditions are not satisfied within
the specified time limit(s), Buyer may, at its sole option and discretion, either waive such
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conditions or terminate this Agreement. If Buyer elects to terminate flus agreement, the Deposit
shall be promptly returned by Seller, Buyer and Seller shall each pay one-half of any title and
escrow cancellation fees, and both parties shall be relieved from any liabilities or obligations .
under this Agreement, except for any indemnity obligations azising hereunder.
4.1 Approval of Title. Title Company stands ready to issue at the Close of
Escrow(as defined herein below), an ALTA Owners Policy of title insurance subject only to the
following: (i)the standard printed exceptions set forth in the Title Policy; (ii) general and special
real property taafes and assessments, if any, for the current fiscal year, a lien not yet due and
payable; (iii)the Permitted Exceptions; and (iv) any other exception created or consented to in
writing by the Buyer (the "Title Policy").
4.2 Insnections.
(a) Buyer and its designated agents, contractors and employees shall,
upon two (2) business days written notice to Seller, have the right to physically inspect the
Properiy and to conduct tests and inspections, including, without limitation, biologicai,
geological and environmental assessments (hereinafter collectively "Inspections") on the
Property. Buyer's Inspections shall be condncted during normal business hours at times mutually
acceptable to Buyer and Seller. No invasive testing or boring shall be done withou4the prior
written notification to Seller and Seller's written permission of same, which permission shall not
be unreasonably withheld or delayed. All Inspections shall be done at the Buyer's sole cost and
expense. Upon completion of such Inspections, Buyer shall repair any damage that it may cause
to Properiy. Buyer shall, upon request, provide Seller with copies of any tests, inspections or
reports for the Property prepared by or for Buyer.
Seller shall deliver all reports and studies of any material condition of the
Properiy in its possession or control to Buyer within five (5) days after the opening of Escrow.
Buyer shall have the right, in its sole discretion,to approve or disapprove the Property based
upon the Inspections and existing reports and studies within forty five (45) days from the
Opening of Escrow (as defined in pazagraph 6.1) (the "Due Diligence Period"). In the event
Buyer so disapproves the Properiy prior to the expiration of the Due Diligence Period, this
Agreement shall terminate and the Deposit shall be refunded. In the event Buyer does not
disapprove the Property in writing to Seller and Escrow Holder(as defined in pazagraph 5) prior
to the expiration of the Due Diligence Period, this condition shall be deemed waived.
(b) Buyer shall protect, indexnnify, defend and hold the Property,
Seller and Seller's officers, directors, employees, representatives and agents free and harmless
from and against any and all claims, datnages, liens, stop notices, liabilities, losses, costs and
expenses, including reasonable attorney's fees and court costs, resulting from Buyer's Inspections
and testing of the Properiy, including, without limitation,repairing any and all damages to any
portion of the Properiy, azising out of or related (directly or indirectly) to Buyer's conducting
such Inspections.Notwithstanding the foregoing, Buyer shall have no obligation with respect to
its discovery of any pre-existing condition. Buyer shalllceep the Property free of any mechanics'
liens or materialmen's liens related to Buyer's right of inspection and the activities contemplated
by Buyer hereunder. The indemnity obligation shall not be merged with the Grant Deed, and
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shall survive the Close of Escrow and/or the termination of this Agreement and Escrow prior to
the Close of Escrow.
5. Seller's Conditions of Purchase. Seller's obligation to perfoizn this Agreement
and sell the Properiy shall be subject to the satisfaction of the following conditions, which are for
Seller's benefit only. In the event any of the following conditions are not satisfied within the
specified time limit(s), Seller may, at its sole option and discretion, either extend or waive such
conditions or terminate this Agreement by providing written notice to Buyer and Escrow. If
Seller elects to terminate this agreement under this Section 5, the Deposit shall be promptly
returned to Buyer, Buyer and Seller shall each pay one-half of any title cancellation or escrow
cancellation fees, and both parties shall be relieved from any liabilities or obligations under this
Agreement, except for auy indemnity obligations arising hereunder.
5.1 Recordation of Parcel Man 34211. Parcel Map 34211, in a form and with
conditions acceptable to the Seller, shall have been approved by the City and recorded in the
County as provided in Section 6.7 below prior to the January 5, 2007. Seller agrees to use
commercially reasonable efforts to cause Parcel Map 34211 to be prepared and submitted to the
City for approval, and to be recorded with the County following such approval, as soon as
reasonabty practicable. Submittal of the Parcel Map and supportin� docuuients shall be done I
through the CiTy Manager's office.
5.2 Dismissal of Pendine Liti ag tion. The Pending Litigation shall have been
dismissed or otherwise resolved prior to the Closing Date. Seller agrees to use it commercially
reasonable efforts to cause the Pending Litigation to be dismissed, and to cause any liens on the
Property arising from the Pending Litigation to be released, as soon as practicable following the
Opening of Escrow; provided, however, that Seller shall not be required under this section to pay
more on the Art Palm Note than Seller reasonably and in good faith believes to be due and owing
on that note.
6. Escrow. The purchase and sale of the Property shall be completed through an
escrow('Bscrow")to be opened with Foresite Escrow Company in Palm Desert, or another
escrow company mutually acceptable to the parties (the Escrow Holder").
6.1 Openin�. Within two (2) days after the mutual execution of this
Agreement, Buyer or Seller shall deposit with the Escrow Holder one fully executed counterpart
of this Agreement, which shall constitute the escrow instructions ("Escrow Instructions"). The
date of delivery to Escrow Holder of such("Opening of Escrow") and Escrow Holder shall notify
Buyer and Seller in writing of the Opening of Escrow date, the date set for Close of Escrow and
its acceptance of the Escrow Instructions.
6.2 Closine. Escrow shall close, if at all, on the later to occur of: (1) within
ninety(90) days of the date it is opened or, (2) at such later date that is forty-five (45) days
following the approval and recordation with the County of Parcel Map 34211 ("Close of
Escrow"), but in no event later than January 5, 2007. If and when Buyer and Seller have
deposited into the Escrow the matters required by this Agreement, the various conditions to
closing set forth in Section 4 and 5 have been satisfied or waived, and Title Company can and
3/3/2006 5
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will issue the Title Policy concurrently with the Close of Escrow(the "Closing Date"), Escrow
Holder shall:
(i) Deliver to Buyer(a) the Grant Deed (as hereinbelow defined) by
causing it to be recorded in the Official Records of the Office of the County Recorder of
Riverside County, California; and (b)the Certificate of Non-foreign status;
(ii) Deliver to Seller the Purchase Price,less the Deposit previously
delivered to Seller; and
(iii) Deliver the Title Policy issued by Title Company to Buyer.
63 Costs. The escrow fees and closing costs will be divided in accordance with
normal divisions of escrow costs in Southern California, Riverside County. Seller shall pay the
premium for a CLTA Title Policy. The additional chazge for an ALTA Title Policy shall be paid
by Buyer.
6.4 Prorations. Current real property taxes, bonds and assessments, if any, shall be
prorated at the Close of Escrow on the basis of a thirty (30) day month.
6.5 Additional Documents. Buyer and Seller shall execute such additional Escrow
Instructions as Escrow Holder may reasonably require to act as Escrow Holder, but in no event
shall said additional Escrow Instructions increase the rights of one parry against the other party
hereto or modify the terms and conditions of this Agreement.
6.6 Delivery of Documents and Funds.
(a) At least one (1)business day prior to the Close of Escrow, Seller shall
deliver to the Escrow Holder a grant deed in the form satisfactory to Title Company, a Certificate
of Non-foreign Status and any additional documents reasonably required from Seller to
effectuate the transactions contemplated herein.
(b) At least one (1) business day prior to the Close of Escrow, Buyer shall
deliver to the Escrow Holder, any additional funds required to Close Escrow to Escrow Holder
and any additional documents reasonably required from Buyer to effectuate the transactions
contemplated herein. � 'o�n� �.
O t, �`' ia1
6.7 Parcel Map 3421 L In order to provide fox the subdivision of the Lai�d and n �� �U d�� %> f�j
creation of the Property as a separate legal parcel, Buyer and Seller agree as follows: ,�<,y's�� ��„t�����
,� �< ,
�_;�„� �
(a) The Buyer and Seller shall cooperate in the preparation, approval and �- ` 3
recordation of a new parcel map known as Parcel Map 34211 covering the Land and separating
the Seller's Retained Property from the Property. The following conditions shall apply to the
parcel map:
(b) The Seller shall pay all of the costs associated with the preparation of the
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parcel map and all supporting drawing (i.e., street plans, water plans, utility plans, etc). The City
shall collect no city fees for the processing or recordation of the parcel map or supporting
drawings. .
(i) There shall be no additional studies (traffic, signalization,
environmental site assessment, etc)required for this parcel map.
(ii) PM34211 shall have Technology Drive street right of way located �
50% on the Seller's property and 50% on the property to the south. �
(iii) The Seller and the Seller's Retained Property shall not be
responsible for any street improvements to Gerald Ford or Portola Avenue. The Seller shall not
contribute to any signalization on Gerald Ford Drive.
(c) The Seller shall pay for the construction of 50% of Technology Drive and <
100%of Metroplex Drive (as generally shown on TPM 30042). ��
(d) The Seller shall allow for two drainage easements for the property to the
south to drain to the drainage channel located on the north side of the Seller's Retained Property,
with the specific scope and location of such easements reasonably acceptable to Seller.
(e) The Seller's retained property shall be allowed to drain into the drainage
channel located on the north side of the property, and there shall be no onsite retention required
by the Seller's Retained Properiy. Seller shall perform appropriate hydrology analysis to ensure
channel is appropriately sized.
(fl The Technology Drive street section shall be seventy six (76) feet wide, �
thirty-eight(38) feet per side, with one center two-way left turn lane, and sidewalks immediately
againstthe curb.
(g) The City shall revive the expired precise plan approvals for the buildings
to be located at 74-500, 74-524, 74-588, and 74-812 Technology Drive.
(h) Buyer and Seller recognize that the payoff of the Art Palm Note and release
of the Deed of Trust securing it are a condition to recordation of Parcel Map 34211 (unless Seller
and the holder of the Art Palm Note otherwise agree). Seller agrees to use its commercially
reasonable efforts to settle or otherwise resolve the Pending Litigation and pay off the Art Palm
Note and cause the Deed of Trust to be reconveyed as soon as practicable following the Opening
of Escrow and release of the Deposit, so that the Parcel Map can be completed and recorded.
7. Seller's Renresentations and Warranties. Seller hereby makes the following
representations, waiz�anties and acknowledgments and agrees that such representations,
warranties and acknowledgments shall be true as of the Close of Escrow and shall survive the
Close of Escrow.
7.1 Seller has the full right, power and authority to execute this Agreement.
3/3/2006 7
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7.2 All documents executed by Seller which are to be delivered to Buyer at
the Close of Escrow will be duly authorized, executed and delivered by Seller and will be legal, -
valid and binding obligations of Seller enforceable against Seller in accordance with their
respective terms (except to tl�e extent that such enfarcement may be limited by applicable
bankruptcy, insolvency, moratorium and other principles relating to or limiting the rights of
contracting parties generally) and will not to the actual knowledge of Seller without investigation
or inquiry violate any provisions of any Agreement to which Seller is a pariy or to which it is
subject.
73 Seller has no actual knowledge without inquiry or investigation of any
existing or claimed management agreements, maintenance agreements, service contracts, leases,
rental agreements or other contracts or azrangements affecting the Property that will survive the
Close of Escrow.
7.4 Prior to the Close of Escrow or the termination of this Agreement by
Buyer in accordance with the terms herein, Seller shall not execute any option, lease, escrow
instructions, sale contracts, or other agreements or instruments giving any other party any right
of ownership, possession, or use of the Property or any part thereof, or further encumber the
Property or any part thereof
7.5 Seller has no actual knowledge without inquiry or investigation of the
existence of airy underground tanks or of any toxic substances or hazardous materials or wastes
(as those terms are defined under any federal, state or local laws or regulations) located on or
about the Property.
7.6 Seller will execute a certificate of Non-foreign Status and deposit same
into Escrow prior to Close of Escrow.
7.7 Seller has no actual knowledge without investigation or inquiry of any
violations or alleged violations of any federal, state, county or other governmental or quasi
governmental law, statute, ordinance, regulation or administrative or judicial order with respect
to the Property.
For purposes of this Section, the term "ta the actual knowledge of Seller" and phrases of
similar import when used in this Agreement shall mean the actual current knowledge of Seller
without any duty of investigation or inquiry whatsoever, including without limitation, the review
of files or interviewing of employees or agents of Seller.
Except for the representations and warranties made in this Agreement, the Property is
being sold and accepted in its "as is", "where is" coudition,without representation or warranty.
8, Buver's Renresentations and Warranties. Buyer hereby makes the following
representations, warranties and acknowledgments, and agrees that such representations,
warranties and acknowledgments shall be true as of the Close of Escrow and shall survive the
Close of Escrow.
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8.1 Buyer hereby represents and warrants that the person executing this
Agreement has flie full authority and power to enter into this Agreement on behalf of Buyer to
purchase the Properiy from Seller, and to take all actions required of it by the terms of this
Agreement.
8.2 All the documents executed by Buyer which are to be delivered to Seller
at the Close of Escrow will be duly authorized, executed, aud delivered by Buyer and will be
legal, valid and binding obligations of Buyer, enforceable against Buyer in accordance with the
respective terms (except to the extent that such enforcement may be limited by applicable
bankruptcy, insolvency, moratorium and other principles relating to or limiting the rights of
contracting parties generally), and will not violate any provisions of any Agreement to which
Buyer is a party or to which it is subject.
8.3 Buyer has the full right, power and authority to execute this Agreement.
9. Notices. All notices, requests, demands, and other communications hereunder
shall be in writing and shall be delivered in person or sent by registered or certified mail, postage
prepaid, commercial overnight courier with written verification or receipt or by telecopy. A
notice shall be deemed given: (a)when delivered by personal delivery (as evidenced by the
receipt); (b) two (2) business days after deposit in the mail if sent by registered or certified mail;
(c) one (1) business day after having been sent by commercial overnight courier as evidenced by
the written verification of receipt; or(d) on the date of confirmation if telecopied. Notices shall
be addressed as set forth below, but any addressee may change its address by written notice in
accordance herewith.
BUYER: City of Palm Desert
Attn: Carlos Ortega, City manager
73-510 Fred Wazing Dr.
Palm Desert, CA 92260
SELLER: Matthew V. Jolmson
Managing Member
La Quinta Village Business Center, LLC
45445 Portola, Suite 5
Palm Desert, CA 92260
ESCROW: Foresite Escrow
Attn: Ester Lopez
41995 Boardwalk, Ste. G2
Palm Desert, CA 92211
10. Brokers and Finders. Except for a commission payable by Seller to Wilson
Johnson Commercial Real Estate, Ina ("Broker")pursuant to a separate agreement between
Seller and Broker, Buyer and Seller warrant that the execution of this Agreement was not
induced or procured through any person, firm, or corporation acting as a broker or finder. Each
3/3/2006 9
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pariy agrees to indemnify and hold the other harmless from and against any damage, liability or
cost, including without limitation, reasonable attorneys' fees, arising from or in connection with
any claim by any other person, firm or corporation based upon their having acted as broker or
finder for or in connection with this transaction on behalf of such party.
11. General Provisions.
11.1 Entire Aereement. This Agreement (including exhibits attached)
constitutes the entire Agreement and understanding between the parties with respect to the
subject matter contained herein, and supersedes any prior Agreement and understanding about
the subject matter hereof. This Agreement may only be modified or amended by a written
instrument executed by Seller and Buyer and deposited with Escrow Holder.
11.2 Time is of the Essence. Time is of the essence of this Agreement and the
Escrow described herein, notwithstanding any provision to the contrary in the Escrow
Company's general Escrow Instructions.
113 Headings. The subject headings of the sections and paragraphs of this
Agreement are included for purposes of convenience only and shall not affect the construction or
interpretation of any of its provisions.
11.4 Countemarts. This Agreement may be executed in any number of
counterparts each of which shall be deemed an original and all of which together shall constitute
but one and the same instrument.
11.5 Successors and Assiens. Buyer shall neither assign its rights nor delegate
its obligations hereunder without obtaining Seller's priar written consent, which may be
withheld in Seller's sole discretion. In no event shall any assignment relieve Buyer from its
obligations under this Agreement. Any other purported or attempted assignment or
delegation without obtaining Seller's prior written consent shall be void and of no effect. Subject
to the restrictions set forth above, each covenant and condition contained in this Agreement shall
inure to the benefit of and be binding on the parties to this Agreement and their respective heirs,
executors, administrators,personal representatives, successors and assigns.
11.6 Attornevs'Fees: Costs of Litieation. If any legal action or any other
proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default, ar misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party or parties shall be entitled to recover reasonable attorneys' fees
and other costs incurred in that action or proceeding, in additional to any other relief to which it
or they may be entitled, including the fees and costs incurred in enforcing any judgment which
may be obtained in said action.
11.7 Confidentialitv. The parties agree that, to the extent permitted by
applicable law, the terms of fliis Agreement shall be kept confidential until such time as Buyer
and Seller otherwise agree in writing.
�
3/3/2006 10
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11.8 Governin�Law. This Agreement shall be governed by and construed in
accordance wifli the laws of the State of Califomia.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
SELLER: BUYER:
La Quinta Village Bu iness Center, LLC The City of Palm Desert, a California
municipal corporation
By: � _ By; �9���
3/3/2006 11
SUBDIVISION IMPROVEMENT AGREEMENT
DATE OF AGREEMENT: , 20
NAMEOFSUBDNIDER: G�� IS'o� �c� �ta� Sfl�� C�P.C�, �� c =
(referred to as "SUBDIVIDER").
� �cZrcofS
NAME OF SUBDIVISION: �Y'✓� ��Zi l - l No. of Lots: `Z. Lo-k s
(referred to as "SUBDIVISION").
TENTATIVE MAP RESOLUTION OF APPROVAL NO.: 2� `� ) (TM No:���i()
(referred to as "Resolution of Approval")
IMPROVEMENT PLANS APPROVED ON:
(referred to as "Improvement Pians").
ESTIMATED TOTAL COST OF IMPROVEMENTS:$ G' I � , O (o(„ , (�D
ESTIMATED TOTAL COST OF MONUMENTATION: � � �O�e U�'
SURETY:
BOND NOS:
SURETY:
-OR-
IRREVOCABLE STAND-BY LETTER OF CREDIT NO.
FINANCIAL INSTITUTION:
-OR-
CASH/CERTIFICATE OF DEPOSIT, AGREEMENT DATED:
FINANCIAL INSTITUTION:
This Agreement is made and entered into by and beiween the City of Palm Desert, a
municipal corporation of the State of California, hereinafter referred to as "CITY", and the
SUBDIVIDER.
RECITALS
2MPUO�D78\I597
A. SUBDIVIDER has presented to ClTY for approval and recordation, a final
subdivision map of a proposed SUBDIVISION pursuant to provisions of the Subdivision
Map Act of the State of Galifornia 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
Agproval. The Resolution of Approval is on file in the Office of the City Clerk and is
incorporated into this Agreement by reference.
C. The 5ubdivision Laws establish as a condition precedent to the approval of a
final map that SUBDIVIDER must have complied with the Resolution ofApproval and must
have either(a)completed, in compiiance with CITY standards, all of the improvements and
land development work required bythe Subdivision Laws orthe 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.
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
improvement work required by CITY in connection with the proposed SUBDIVISION.
SUBDIVIDER has secured this Agreement by improvement securify required by the
Subdivision Laws and approved by the City Attorney.
RMPUB1D1E1597 _2_
E. Complete Impravement Plans for the construction, installation, and
completion of the improvements have been prepared by SUBDIVIDER and approved by
fhe City Engineer. The Improvement Plans numbered as referenced previously in fhis
Agreement are on file in the Office of the Gity Engineer and are incorporated into this
Agreement by this reference. All references in this Agreement fo the (mprovement Plans
shall inciude reference to any specifications forthe improvements as approved by the City
Engineer.
F. An estimate of fhe cost for construction of the public improvements and
performing land development work in connection with the improvements according to#he
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 F�chibit "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 public improvement monuments, street signs, and stakes as specified on
the finai map are to be completed prior to final formal acceptance by the City Council.
Individual property monuments must be installed within one year from the formal final
Council acceptance af said SUBDIVISION. '
I. SUBDIVIDERrecognizesthatbyapprovalofthefinalmapforSUBDIVISION,
CITY has conferred substantial rights upon SUBDIVIDER, including the rightto sell, lease,
orfinance lots within the SUBDIVISION. As a result, CITY will be damaged to the extent of
the cost of installation of the improvements by SUBDIVIDER's failure to perform its
obligations to cornmence construction of the improvements by the time established in this
RMPUB�DIE17597 _3_ .
Agreement. CITY shall be entitled to aIl 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 fhe sole
discretion of CITY.
NOW, THEREF�RE, 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 Oblipation to Construct (mprovements.
' 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 fhe 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,thatthe
improvements shall not be deemed to be completed until accepted by City Councii 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 Cll"Y of off-site rights-of-way,
easements and other interests in real property shall be subject to a separate agreement
between SUBDIVIDER and CITY. SUBDIVIbER shall also be responsible for obtaining
RMPUD�D]C11597 _4_
any public or private sanitary sewer, domestic water, drainage, andlor utility easements or
authorization to accammodate the SUBDIVISION.
(e) Commence construction of the improvements bythe time established
in Section{22)of this Agreement and complete the improvements bythe deadline stated in
Section (1)(b) above, unless a time extension is granted by the CITY as authorized in
Section (22).
(f) Install ail 5UBDIVISION 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
sfreet name signs shall be installed before acceptance of the improvements by CITY.
(2) Acquisition and Dedication of Easements or Riqhts-of-Way. If any of the
public improvement and land use development work contemplated by this Agreement is to
be constructed or installed on Iand 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
properEy 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 orother interests in real property, as determined bythe City Engineer, or
{c) The issuance by a court of competentjurisdiction pursuant to the State
Eminent Domain Law of an order of possession. SUBDIVIDER shall comply in all respects
with the order of possession.
RMPUB\DlL11597 '�j_
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 foilows:
(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 paymenf 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 additional amount of 50% of
the estimated cost of the improvements; and
(c) toguaranteeorwarrantytheworkdonepursuanftothisAgreementfor
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
esfimated cost of the improvements; and
(d) SUBDIVIDER shall also furnish to CITY good and sufficient security in
the amount of one hundred percent(100%}ofthe estimated cost of setting SUBDIVIS{ON
monuments as stated previously in this Agreement in Section{1)(flfora period ofone 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
RAIPUB�DIE\I597 _(_
approved security,the replacement shall: 1)comply with all the requirements for security in
this Agreeme�t; 2) be provided to the City Engineer to be filed with the City Clerk and,
upon filing, 3) shal! be deemed to have been made a part of and incorporated into this
Agreement. Upon provision of a repfacement securitywith 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 originai estimated cost of the improvements,which are
mwtually agreed upon by CITY and SUBDIVIDER, shall not relieve the improvement
security given for faithful pertormance 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 for faithful performance as required by
Section (3)of this Agreement for one hundred percent(100%)of the totai estimated cost of
the improvements as changed, altered, or amended, minus any completed partial releases
allowed by Section (6) of this Agreement.
(b) 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 ta modify the standards applicable to the SUBDIVISION and this
Agreement, when necessary to protect the public safety or welfare or comply with
applicable state orfederal law or CITY zoning ordinances. If SUBDIVIDER requests and is
granted an extension of time for completion of the impravements, CITY may apply the
standards in effect at the time of the extension.
RMPUB�DJE11597 _'�_
(5) Inspection. SUBDIVIdER shall at all times maintain properfacilities and safe
access for inspection of the public improvemenfs 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 fhe City Engineer, or the City Engineer's authorized
representative. Ifthe City Engineer, orthe designated representative, determines thatthe
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 cons#ructing
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 shal)bear all costs of
inspection and certification. No improvements shall be deemed completed until accepted
by the City Gouncil 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 orwork,
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 woric 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
anaruav»�is9� _g_
faifhful perFormance of the improvement work and that the security shalf not be reduced to
an amount less than fifty percent(50%)of the totai improvement security given forfaithful
performance until final completion and acceptance of the improvement work. In no event
shall the City Engineer authorize a release of the improvement securitywhich 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 six (6)
months after completion and acceptance of the work, be reduced to an amount equal to no
less than 125% of the total claimed by all claimants for whom liens have been fifed and of
which notice has been given to the CITY, plus an amount reasonably determined by the
City Engineerto be required to assure the perFormance of any otherobligations 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 far fhe 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 �
(e) CITY may retain from any security released, an amount sufficient to
cover costs and reasonable expenses and fees, including reasonable attorneys'fees.
(7) Iniury to Public Improvements, Public Propertv or Public Utilities Facilities.
SUBDIVIDER shafl replace or repair or have replaced or repaired, as the case may be, all
public improvements, public utilities facilities and surveying or subdivision monuments
RMPUB�DIE�I597 '9_
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 fhis
Agreement,whethersuch property is owned bythe United 5tates oranyagencythereof,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 SUBDIVIDEft's expense, obtain aIl
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 canstruction 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;
(4)SUSDIVIDER's failure to perform substantiai construction work for
a period of twenty (20) calendar days after commencement of the work;
{5)SUBDIVIDER's insolvency, appointment of a receiver, orthe fiting
of any petition in bankruptcy either voluntary or involuntary which SUBDIVIDER fails to
discharge within thirty (30) days;
RMP[1B�D1�t597 -1 Q_
(6) the commencement of a foreclosure action against the
SUBDIVESION or a portion thereof, or any conveyance in lieu or in avoidance of
foreclosure; or
(7) SUBDIVIDER's failure to pertorm any other obligation under this
Agreement.
(b} CITY reserves to itself all remedies available to it at faw or in equityfor
breach of SUBDIViDER's obligations under this Agreement. CIl"Y shall have the right,
subject to this Section, to draw upon or utilize the appropriate security to mitigate CITY's
damagesineventofdefaultbySUBDIVIDER. TherightofClTYtodrawuponorutilizethe
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 bythe 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 pertorm such obligation tv✓enty(20)days after mailing written notice of
defaultto SUBDIVIDER and to SUBDIVIDER's surety, and agrees to paythe entire cost of
such performance by CITY.
CITY may take over the work and prosecute the same to completion, by contracf or
by any other methad 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
RIdPUD�DJ�t597 -11_
take passessian 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 SUBDIVISfON 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 pertormance 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) Warrantv. SUBDIVIDERshallguaranteeorwarrantytheworkdonepursuant
to this Agreement for a period of one year after final formal acceptance of the
SUBDIVISION by the City Council against any defective work or labor done ar defective
materials fumished. If within the warranty period any work or improvement or part of any
wark 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
,u�t�ue�n,�,s9, -12-
parts of the work or strucfure. Should SUBD(VIDER fail to act promptly or in accordance
with this requirement, SUBDIVIDER hereby authorizes CITY, at CITY's option, to perform
the work twenty (24) days after mailing written notice of default fo SUBDIVIDER and to
SUBDIVIDER's surety, and agrees to pay the cost of such work by CITY. Should CITY
defermine 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 pertorm the necessary work and SUBDIVIDER shall pay to CITY the
cost of such repairs.
` (11) SUBDIVIDER Not Aqent of CITY. Neither SUBDIVIDER nor any of
SUBDIVIDER's agents, contractors or subcontractors are or shali be considered to be
agents of CITY in connection with the performance of SUBDIVIDER'S obligations under
this Agreement.
(12) Iniury to Work. Until such time as the improvements are accepted by CITY,
SUBDIVIDER shail be responsibfe for and bearthe 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 forthe 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.
(13) Environmental Warrantv. Prior to the acceptance of any dedications or
improvements by CITY, SUBDIVIDER shall certify and warrantthat neitherthe property to
be dedicated nor SUBDIVIDER is in violation of any environmental law and neither the
RMPUB�DIEl597 -13-
property to be dedicated nor fhe 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 shail give prompt
written notice ta 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 orthe migration thereoffrom orto any ofher propertyadjacentto,
or in the vicinity of, the property to be dedicated;
(b} Any claims made or threatened by any third party against CITY orthe
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
properfy 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, useforthe purposeforwhich is it is intended,transferabilityorsuit
under any environmental law.
nMruo�oieis9� -14-
(14} OtherAcareements. Nothing contained in this Agreemenf shall preclude CITY
from expending monies pursuant to agreements concurrently or previously executed
between the parties, or from entering into agreements wi4h other subdividers for the
apportionment of costs of water and sewer mains, or other improvements, pursuant to the
provisians of the CITY ordinances providing therefore, nor shall anything in this Agreement
commit CITY to any such apportionment.
(15) SUBDIVIDER'S Obliqation to Warn Public Durinq Consfruction. Until formal
final acceptance of the improvements,SUBQIVIDER shall give good and adequate waming
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) Vestinq 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 fhe City Council upon recommendation of the City Engineer after final
completion and inspectian 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) IndemnitvlHoldHarmless. CITYoranyofficeroremployeethereofshallnot
be liable for any injury to persons or property occasioned by reason of the acts or
omissions of SUBDIVIDER, its agents,oremployees,contractors and subcontractors in the
performance ofthisAgreement. SUBDIVIDERfurtheragreesto protect,defend, indemnify
and hold harmless CITY, its officials, boards and commissions, and members thereof,
ILbfPU61D1L�I597 -1 r�-
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 pertormance of this Agreement, except
for such claims, demands, causes of action, Iiability, or loss arising out of the sole active
negligence of the CITY, its o�cials, boards, commissions, the members thereof, agents,
and employees, including all claims, demands, causes of acEion, liability, or loss because
of, or arising out of, in whale 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 resuiting 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 ofwaters from the design and
construction of public drainage systems, streets and other public improvements.
Acceptance by GITY of the improvements shall not constitute an assumption by CITY of
any responsibility for any damage or taking covered by this Section. Cll"Y 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 overwritten objection by
SUBDIVIDER submitted to the City Engineer before approval ofthe 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 routine
RMPUD�D1L�1597 -16-
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 ofthis Section
that SUBDIVIDER shall be responsible for all liability for design and construction of the
improvements installed or work done pursuant to#his Agreement and that CITY shall not
be Iiable for any negligence, nonfeasance, misfeasance or malfeasance in appraving,
reviewing, checking, or inspecting any work or construction. The improvemen4 security
shall not be required to cover the provisions of this Section.
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 SUBQIVIDER'S Obliqations. AIIofSUBDIVIDER'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 subjectto this Agreement, and SUBDIVIDER shall not be entitled to assign
its obligafions 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.
(20) Sale ar 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 SUBDIVI DER of the obligations under Section (18)for the work or improvement done
by SUBDIVIDER.
,w�Po��o,c�is9i _17_
(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 consfruction of the improvements required by this Agreement not
later than six{6) mon4hs after the date of this Agreement. In the event good cause exists
as determined by the City Engineer, the 4ime for commencement of construction or
compietion of the improvements hereunder may be extended for a period or periods not
exceeding a total of two(2}additionai 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 shaU not affect the validity of this Agreement or release the surety or sureties on
any security given for this Agreement. 'Fhe 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, otherthan delay in the commencement of work, resuiting from an act of CITY, act of
God, or by storm or inclement weather, strikes, boycotts or similar palitica!actions which
prevents the conducting of work,which SUBDIVIDER cauld not have reasonablyforeseen
and, furthermore, were not caused by or contributed to by SUBDIVIDER, shall cans4ftute
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) NoVestinqofRiqhts. PerFormancebySUBDIVIDERofthisAgreementshall
not be construed to vest SUBDIVIDER's rights with respect to any change in any zoning or
building law or ordinance.
RMPUBIDJE1t597 -18-
(24) Notices. Ali notices required or provided for underthis Agreement shall be in
writing and delivered in person or sent by mail, posfage prepaid and addressed as
provided in this Section. Notice shall be effective on the date it is delivered in person, or, if
mailed, on the date of deposit in the United States mail. Notices shall be addressed as
follows unless a written change of address is filed with the City:
Notice to CITY: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Attn: Public Works Director
Notice to SUBDIVIDER: ��, �i�l�liz,�i��.tC1P. ,'�itl�iCl� (;�,��� (�.�
�-rs--��i • C'� ,.� C ,� i �
i \�+v�'�\� _ � , C'}� �r:�: ���I.�
A-�-l-��Mccl��w :�ahrr�ri
Notice to SURETY: ����1�-Sr� �rfT"�Ay�G4..��1a�� •-1-+1�
�?,��S"� � • C't1"c�i��`� :,, �'�'�'��
�n �s�act�Yn���T2�b8
��, `���; f`Glc��-'t-'�k�r��
(25) Comaliance With Laws. SUBDIVIDER, its agents, emplayees,contractors
and subcontractors shall comply with all federal, state and local laws in the performance of
the improvements and land development work required by this Agreement.
(26) Severabilitv. The provisians 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. ThecaptionsofthisAgreementareforconvenienceandreference
only and shall not define, explain, modify, limit, exemplify, or aid in the interpretation,
construction or meaning of any provisions of this Agreement.
RAiPUB�DlE71597 -19-
(28) Litiqation 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) Incomoration of Recitals. The recitals to this Agreement are hereby
incorporated into in the terms of this Agreement.
(30) Entire Aqreement. This Agreement constifutes the entire agreement of the
parties with respect ta the subject matter. All modificaYions,amendments,orwaivers ofthe
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 Califomia. •
(32) Jurisdiction. Jurisdiction of all dispufes over the terms of this Agreement
shall be in the Coun#y of Riverside, State of Califomia.
///
//!
//!
//!
aMaoe�nit�is�� -z o-
IN WITNESS WHEREOF, this Agreement is executed by the parties as of the date
hereinabove first written; by CITY, by and through its Mayor.
CITY OF PALM DESERT
SUBDIVIDER
By:
SUBDIVIDER MAYOR
(Proper Notarization of
SUBDIVIDER's signature is
required and shall be attached)
ATTEST:
CITY CLERK
APPROV AS TO FORM:
�
CI ATT��RNEY
an+eua�n�ei s9� -21-
PRQPERTY OWNER:
William Hay and Denise DuBarry-Hay,
husband and wife asjo�t tenants
��� .
By: Willia�-'ay,�'`�
G��«
Date: �7���
�
By: Denise uBerr ay
Date: �����/�
; Scott VA/ilson, an unmarried man
! _1- �"— �y°-'t%� �, ��,�-•�:..
By: Scott R. Wilson
Date: /Q :13/� 5'
Matthew V.lohns and Linda Johnson,
e of the J hns n Fa Iy Trust
. By: Matthew .J nson
Date: /�ji b
; _ t�'(J�( �__�/��
By� Lind loh�son
D,ate: �(���'1' ,Cj�f
j � -r"�
Lost Horse Mountain, LC, a Califarnia
Li it bilit p y
By: latthe .J nson
Date: �C7 � �j
I
STATE OF CALIFORTTiA }ss.
COTJNTY OF� ii.'G'� �`�ii l'SZ S> }
On (��(� .�.r,�ii t��" `�-�'"?%i�/'S� be£ore me,
°17:, ,:� 4,. ,m,�.�tr ;�„_��; i`. ,-,F a notary public, personally appeazed
t_.c��, �' � � c .�i�.� t-k�,.u;.f who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within anstniment and
acknowledged to me that he/st�e executed the same in his/h� authorized capacity, and that by
his/{ireT signature on tha insmiment the person or the entity upon behalf of which the person
acted, executed the instrument.
I certify under PENALTY OF PERTLJRY tander the Iaws of the State of CaG£ornia that the
foregoing pazagraph is true and correct.
WITNESS my hand and official seal.
^ /� 1 �� RYAN MARIE TORLAND
t�J `�` ��? i � CoMM.# t866444
Signatute v�1 r n�� _ �(t xk _ti:IE., L� N eotnnvruauac�uFors�u U1
� �..•v�i.�- r ' . �. RIVFAsmFCouNtt
�� IAr Couu.Etr.9v.21,70f3�
. (Tlds area for officiai notariat seal)
/
P6401-103211112892YL.doc
STATE OF CALIFORNLA }ss.
COUNTY OF `1�'�.`ttl�''`��'i�? }
On l/�,''�J�i{�,(' �l; r��°� , before me,
_���?1�V1 1�� �`?�'i'P, �"� lr�i�-a�� , a notary publiq personally appeared
,t�1P�`��'. l�t.}��C�l�— C'�k�/ who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument and
acknowtedged to me that h�/she executed the same in,tu§lher authorized capacity, and that by
]u�/her signattxre on the instruxuent the person or the entity upon behalf of which the person
acted, executed tha instrument.
I certify under PENALTY OF PER7IJRY under the laws of the State of California that the
foregoing pazagraph is true and conect.
WITNESS my haIId and OffiClal Seal. gYAN MARIE TORLAND .�
; " ,. COMM.#188644d
1n xonavrueuacwvonnu Ui
Yl pry(A�IDECWMIT
�j Nr Ca+y.En.8�2�2�F
Signature!h,� ,� i�.tr„��t �.4 ), -: ._,_ �
,�
. (This acea for official noffiial seat)
P6401-1032\l l 12842v2.doc
STATB OF CALIFOItNIA }ss.
COUNT'Y OF 4di1,�}piJ!�\ (� � }
�}} ���I'�zl�f�'��' , before me,
�/�,t u IM �� �Z�,.,t��,��. ��. , a notary public, personally appeared
��`-;af��� �P_. � As � �5��.. who proved to me on the basis of
satisfactory evidence to be the person whose name is subsczzbed to the within instrument and
acknowledged to me that he/� executed the sama in his/t� authorized capacity, and that by
his/�r signature on the instrument the person or the entity upon behalf of which the person
acted, executed the instrument.
I certify under PENALTY OF PEILJLTRY under the laws of the State of California that the
foregoing pazagraph is true and conect.
WITNESS my hand and official seal.
� � RYAN MARIE TORUN�
i CoMM.#1868444
XOARYPU9lIC�CAUfOANIA �
$1gIldfUi � PoVEas�Ctlu�rtv �
Mr Ca�4.EZP.9�,P7,1013+
(This area for official notariai seal)
P6401-103211112892�+L.doc .
STATE OF CALIFORNIA }ss.
COUNTY OF�;t;'u'��`d,r1 }
On /9��k>i v- ;�.r� :`��,�T . before me,
�1� �-, �`)`)izc�, i '-i(>�i�r�� �+L , a noEary publiq personally appeazed
�Il'Ii3�1'G p�� 1/,' ,� !.t v5 SC��--�, who proved to me on 4he basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument and
acknowiedged to me that he/s� executed the same in his/t�'r authoriaed capacity, and that by
hislh�r'signature on the instnunent the person or the entity upon behalf of which the person
acted, executed the instrument.
I certify under PENALTY OF PE RY under the laws of the State of California that the
foregoing pazagraph is true and correct.
WITNE55 my hand and official seal.
� PYAN MARIE TORLANO
� �,�/ ,n NOTARryY�ROUECWNiYORNN N
.�1 3t111'��2�_��r'�=�—t�-� ��
lM Coxu.fu.�v.27�2013
(11tis area for officiat notsrial seal)
P6401-103211112892c2.doc
STATE OF CALIFORNTA }ss.
COUNTYOF��,{�i���,�,,�p }
On ��r-,�,r��.,- �� ,� ,�,��'t before me,
�i,�� :, /k7r��r�,��n_!� j. �L( , a notary public, personally appeared
_�,�,�ra f i"i�,:--, �`�n�.-, who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument and
ac�amowledged to me that Ir�she executed the same in h s/her authorized capacity, and that by
�"rs/her signature on the instnzment the person or the entity upon behalf of which the person
acted, executed the instrument.
T certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and coRect.
WITNESS my hand and ofFicial seal.
��� � �J ,�, -•:y RYRN MARIE TOALAND�
IA CuuM.d 18a9444
S�o�.�fi� � l J.�..:f::�"'\ N r �. t A'fitN':U91�1, ai.FAflNU
G .e,y��s'��1,l�YI,,,.�: -.5.�^ , aYi,siH f.ie�i,
t,� .`;�r.. :t, xr'v.�...+F
(This area for official notarial seal)
P6401-]032\1)12892v2.doc
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