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HomeMy WebLinkAboutC31290 Joint Access Agreement With Westin Desert Willow Villas at DWGRCITY OF PALM DESERT STAFF REPORT REQUEST: APPROVE A JOINT ACCESS AGREEMENT BETWEEN THE CITY AND WESTIN DESERT WILLOW VILLAS AT DESERT WILLOW GOLF RESORT (Contract No. C31290) SUBMITTED BY: Martin Alvarez, Redevelopment Manager PARTY: Westin Desert Willow Villas 75 Willow Ridge Palm Desert, CA 92260 DATE: October 27, 2011 CONTENTS: Joint Access Agreement Site Plan Recommendation By Minute Motion: 1. Approve a joint access agreement between the City and Westin Desert Willow Villas at Desert Willow Golf Resort; and 2. Authorize the Mayor to execute the agreement. Background The Westin Desert Willow Villas (WDWV) timeshare project is located adjacent the Desert Willow Golf Resort. The WDWV opened the first phase in February 2010, which includes five buildings totaling 74 timeshare units and a clubhouse. WDWV is currently under construction of the sixth building consisting of 22 units. The WDWV timeshare project has been a beneficial project to both the City and to Desert Willow Golf Resort (DWGR). WDWV generates annual transient occupancy tax and project amenity fees to the City. In addition, Westin timeshare owners routinely frequent Desert Willow's two golf courses and utilize the clubhouse amenities and dining opportunities. Access Agreement City and WDWV staff have worked together to develop a joint access agreement that would facilitate golf cart transportation of Westin's timeshare owners to the Desert Willow Clubhouse. In order to establish a connection between the two properties, a new Staff Report Joint Access Agreement with Westin Desert Willow Villas at DW Page 2 of 2 October 27, 2011 10 foot wide by 45 foot long golf cart path is proposed adjacent to Desert Willow's Mountain View Golf Course Hole No. 18 (see attached exhibit). It is envisioned that the proposed golf cart connection will allow Westin's staff to deliver their guests via golf cart to the Desert Willow Clubhouse though Desert Willow's existing golf cart paths. After playing golf or enjoying our clubhouse amenities, Desert Willow staff will return Westin timeshare guests to their clubhouse. The mutual access agreement is beneficial to both Westin's guests and to the City through increased tee time reservations and food/beverage revenues. Staff recommends that the City execute a Joint Access Agreement with Westin Desert Willow Villas and authorize staff to construct the 450 square foot concrete golf cart path between both properties. Fiscal Analysis The proposed golf cart path connection is estimated at $6,000. The cost will be shared equally by the City and Westin. No appropriation is required; funding for the golf cart path is available in Desert Willow's FY 2011/2012 Operating Budget. Submitted By: rtin Alvarez, Redevelopment Manager Department Head: Paul S. Gibson, Director of Finance CITY COUNCILACTWN' APPROVED ✓ 01"NIF0 RECEIVED __. i 3 9 1I V,R MEETING DATE. LC `")A G AYES: hC\eC±U nnrN-Ki NOES: LL ABSENT: NCne--_-- ABSTAIN: VERIFIED BY: f Original on File with City Clerk's -'Office \\srv-fi12k3\groups\rda\Martin Alvarez\2011\Staff Reports\102711 DW-Westin Access Agr..doc Contract No. C31290 RECIPROCAL LICENSE AGREEMENT This RECIPROCAL LICENSE AGREEMENT (the "Agreement") is entered into as of November , 2011 (the "Effective Date"), by and between the CITY OF PALM DESERT, a municipal corporation (the "City") and WVC Rancho Mirage, Inc., a Delaware corporation ("Westin"). RECITALS A. The City is the owner of that certain real property in Palm Desert, California known as APN 620420009 and identified on Exhibit "A" as the "City Parcel." The City Parcel is improved with a publicly owned and operated golf course known as the Desert Willow Golf Course (the "Golf Course"). B. Westin is the owner of the adjacent land known as APN 620421082 and identified on Exhibit "A" as the "Westin Parcel", which is improved with a time share residence project (the "Villas"). C. The parties wish to improve the City Parcel with an approximately 10' x 45' roadway to connect to an existing concrete path on the Westin Parcel and establish reciprocal rights of access in the areas shown on Exhibit A (together, the "License Areas") in order to facilitate transportation of residents and guests of the Villas to the clubhouse on the Golf Course, on the terms and conditions set forth below. NOW, THEREFORE, in consideration of the mutual promises contained herein and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: AGREEMENT Grant of License to Ci (a) City License Area. Westin hereby grants to the City, for use by the City and its employees, agents, contractors, licensees, and invitees (collectively, "City Permittees"), a non exclusive license over and across the portion of the Westin Parcel identified more particularly on Exhibit "A" as the "City License" for the purpose of transporting guests to and from the Golf Course. (b) Maintenance. Westin shall maintain the area subject to the City License in a safe and clean condition at all times. Notwithstanding the rights of City pursuant to section I (a) above, the City shall have no obligation to enter the Westin Parcel and undertake maintenance activities there. (c) Use Restriction. The City acknowledges and agrees that the City License may only be used for transportation of guests who are accompanied by employees of City or City's contracted Golf Course manager, which is currently Kemper Sports ("Kemper"). No Error! Unknown document property name. Contract No. C31290 generalized public access rights are granted or created hereunder. The parties shall annually agree upon hours of operation and other reasonable usage rules for the transportation of guests via the City License. 2. Grant of License to Westin. (a) Westin License Area. City hereby grants to Westin, for use by Westin and its employees, agents, contractors, licensees, and invitees (collectively, the "Westin Permittees"), a non exclusive license over and across the portion of the City Parcel identified more particularly on Exhibit "A" as the "Westin License" for the purpose of transporting guests to and from the Golf Course. Westin shall not use the Westin License until the concrete path has been constructed by the City pursuant to paragraph 2 (b) below. (b) Construction of Concrete Path. City shall construct an approximately 10' x 45' paved roadway on the area subject to the Westin License. The costs of the construction of the concrete path shall be shared equally by City and Westin. Prior to commencement of construction, City shall provide the estimated construction costs for Westin's approval, which shall not be unreasonably withheld. If Westin does not respond to the estimated costs within ten (10) days, said costs shall be deemed approved. Westin shall reimburse City for its share of the approved costs within thirty (30) days of the date of an invoice from City for same. In addition, Westin shall provide a light bollard in the concrete path area and pay related utility costs. (c) Maintenance. City shall maintain the area subject to the Westin License in a safe and clean condition at all times. Notwithstanding the rights of Westin pursuant to section 2 (a) above, Westin shall have no obligation to enter the City Parcel and undertake maintenance activities there. The parties shall be jointly responsible for landscaping maintenance and shall cooperate to develop an efficient and cost effective plan for implementing such maintenance. (d) Use Restriction. Westin acknowledges and agrees that the Westin License may only be used for transportation of guests who are accompanied by employees or contractors of Westin. No generalized public access rights or rights for residents or guests of the Villas are granted or created hereunder. The parties shall annually agree upon hours of operation and other reasonable usage rules for the transportation of guests via the Westin License. 3. Term. The initial term of the licenses granted hereunder shall be for one (1) year from the Effective Date (the "Initial Term"), unless terminated earlier due to default. Upon the end of the Initial Term, the license shall be extended for an additional one (1) year unless until either party provides notice to the other party not less than thirty (30) days before the end of the initial term that it does not wish to extend the licenses and this Agreement, or unless terminated earlier due to default. At the end of the second one (1) year term, if any, City and Westin shall meet to conduct a review of operations under this Agreement and to determine whether its term shall be further extended. Error! Unknown document property name. Contract No. C31290 4. Indemnity Each party (the "Indemnifying Party") agrees to indemnity, defend, protect, and hold harmless the other party (the "Indemnified Party") and its officers, directors, owners and employees from and against any and all claims, demands, actions, lawsuits, proceedings, damages, liabilities, judgments, penalties, fines, attorneys' fees, costs, and expenses arising out of (i) any act or omission to the extent caused by the negligence or willful misconduct by the Indemnifying Party or any officer, director, owner, employee or agent of the Indemnifying Party, (ii) claims by third parties against the Indemnified Party arising from any other actions or omissions of the Indemnifying Party, its officers, directors, owners, employees or agents, (iii) claims which result from any other act or omission not enumerated above constituting the negligence or willful misconduct by Indemnifying Party or any officer, director, owner, employee or agent of Indemnifying Party, or (iv) any breach of this Agreement. Such indemnification will include reasonable attorney's fees and costs, whether or not suit is brought, with counsel reasonably acceptable to the Indemnified Party. The foregoing provisions, and all other liabilities of the Indemnified Parties hereunder, shall survive the termination of this Agreement 5. Insurance. Westin shall procure or cause to be procured, at its sole cost and expense, and shall keep in effect from the date of this Agreement and at all times until the end of the term, Commercial General Liability Insurance applying to the use of the License Areas. Such insurance shall not include any contractual obligations other than those found in a standard commercial general liability coverage form and shall not be subject to any deductible. Such coverage shall have a minimum combined single limit of liability of at least One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate. All such policies shall be written to apply to all bodily injury, property damage, personal injury, and other covered loss, however occasioned, occurring during the policy term. The Commercial General Liability insurance shall be in force prior to any use of the License Areas. The Insurance certificate shall also provide for waiver of subrogation in favor of the additional insured. The General Liability Policy shall be primary and non-contributing insurance or endorsed to be primary and non-contributing insurance. Each Party shall maintain employer's liability and workers' compensation insurance as required by law. City shall maintain general liability insurance with limits of at least One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate and provide Westin with an Evidence of Coverage letter adding Westin, Starwood Vacation Ownership, Inc., and its affiliates and/or subsidiaries, as additional insureds. Westin shall provide City with a Certificate of Insurance evidencing an endorsement to such policy naming City, the Redevelopment Agency of the City of Palm Desert, Kemper and their respective council members, board members, directors, officers, employees and agents (as applicable) as additional insureds. Each party shall also maintain automobile liability insurance containing a $1,000,000 combined single limit for bodily injury and property damage and covering all owned, non -owned and hired vehicles. 6. Default and Remedies. An event of default shall occur under this Agreement if either party shall fail to comply with any of its obligations hereunder and does not cure such failure within thirty (30) days of written notice from the other party. Upon the occurrence of such an event of default, the non -defaulting party shall have the right to terminate this Agreement upon written notice. Error! Unknown document property name. Contract No. C31290 7. Miscellaneous. (a) Notices. Any notice, consent or approval required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given upon (i) hand delivery, (ii) one (1) "Business Day" (as defined below) after being deposited with federal express or another reliable overnight courier service for next day delivery, (iii) upon facsimile transmission (except that if the date of such transmission is not a Business Day, then such notice shall be deemed to be given on the first Business Day following such transmission), or (iv) two (2) Business Days after being deposited in the United States mail, registered or certified mail, postage prepaid, return receipt required, and addressed as follows: If to Westin: ,CA Phone: Fax: If to City: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Attention: Tel: (760) 346-0611 Fax: (760) 341-6372 (b) Assignment, Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, each party, its successors, assigns and successors -in - interest. (c) Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of California. (d) Severability. If any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable by any court of competent jurisdiction, the validity of the other provisions of this Agreement shall in no way be affected thereby. ' (e) Singular and Plural, Gender. Whenever the singular number is used in this Agreement and the context requires, the same shall include the plural. Further, when used in this Agreement and the context requires, the neuter gender shall include the feminine and masculine, the masculine shall include the feminine and neuter, the feminine shall include the masculine and neuter, and each shall include any reference to a corporation, partnership, trust, or other legal entity. Error! Unknown document property name. Contract No. C31290 (f) Entire Agreement. This Agreement and all documents referred to herein: (i) constitute and are intended as a final expression and a complete and exclusive statement of the understanding and the agreement between the parties hereto with respect to the subject matter hereof, (ii) supersede all prior or simultaneous understandings, correspondence, letters of intent, negotiations, or agreements, whether oral or in writing, between the parties respecting the subject matter of this Agreement; and (iii) may not be modified, amended or otherwise changed in any manner except by a writing specifically setting forth such modification, amendment or change and executed by each of the parties hereto. All exhibits attached hereto are incorporated herein by this reference. (g) Jurisdiction, Venue. In the event any matter between the parties related to the subject matter of this Agreement is required to be heard by a court, the parties consent to jurisdiction in the State of California, County of Riverside. Subject to Section (d) above, the parties acknowledge and agree that the Superior Court of the State of California in and for the County of Riverside, and the associated federal and appellate courts, are the appropriate venues to hear and decide any issue, dispute, or controversy arising from or related to this Agreement and such courts shall have exclusive jurisdiction to so hear and decide any such issue, dispute, or controversy. (h) Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. (i) Further Acts. Each of the parties shall execute such other and further documents and do such further acts as may be reasonably required to effectuate the intent of the parties and carry out the terms of this Agreement. 0) Headings. The headings used in this Agreement are for convenience only and shall not be used to aid in the interpretation of this Agreement. (k) Attorneys' Fees. If any action shall be commenced to enforce the terms of this Agreement or to declare the rights of the parties hereunder, the prevailing party shall be entitled to recover all of its costs and expenses (including, but not limited to, its actual attorneys' fees) from the nonprevailing party. In addition to the foregoing award of attorneys' fees and other litigation costs to the prevailing party, the prevailing party in any lawsuit on this Agreement shall be entitled to its attorneys' fees and other litigation costs incurred in any post judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement. This provision shall survive the termination of this Agreement. [Signatures appear on next page.] Error! Unknown document property name. Contract No. C31290 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. ATTEST: (SEAL) City Clerk Approved as to form: City Attorney WESTIN: [WESTIN DESERT WILLOW, a By: _ Name: Title: CITY: CITY OF PALM DESERT, a municipal corporation By: Name: Title: Error! Unknown document property name. Contract No. C31290 EXHIBIT "A" CITY PARCEL, WESTIN PARCEL AND LOCATION OF LICENSES Error! Unknown document property name. A-1 ILI M PORTOLA AVENUE 01 It 01 10 Ok 05 a 04 ink mim M M 4 C o III V ,S E 5.WT V m 0 PHASE I TRANSITION AREA PLANTING to MAINTENANCE SURVEY AGREEMENT b> 9 "K)16CTI WESTIN DESERT WILLOW PALM DESERT, CA PM