HomeMy WebLinkAboutC31760 Construction Access Agreement - Desert Willow Golf ResortCITY OF PALM DESERT
STAFF REPORT
REQUEST: APPROVE A CONSTRUCTION ACCESS AGREEMENT
BETWEEN THE CITY AND WESTIN DESERT WILLOW VILLAS
AT DESERT WILLOW GOLF RESORT (Contract No. C31760)
SUBMITTED BY: Martin Alvarez, Redevelopment Manager
PARTY: Westin Desert Willow Villas
75 Willow Ridge
Palm Desert, CA 92260
DATE:
CONTENTS
Recommendation
April 12, 2012
Agreement
Site Plan
By Minute Motion:
Approve a construction 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 (Villas) timeshare project is located adjacent the Desert
Willow Golf Resort. The Villas opened the first phase in February 2010, which includes
five buildings totaling 74 timeshare units and a clubhouse. The Villas project is currently
under construction of the sixth building consisting of 22 units.
The Villas timeshare project is a beneficial project to both the City and to Desert Willow
Golf Resort (DWGR). The Villas 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 staff and Westin owners have developed an access agreement that would facilitate
a secondary construction access for Westin and emergency access for Desert Willow
Golf Resort. The proposed access point utilizes an existing 16 foot wide emergency
access road located off of Portola Avenue. The existing 16 foot wide concrete
Staff Report
Construction Access Agreement with Westin Desert Willow Villas at DW
Page 2 of 2
April 12, 2012
emergency access road terminates 360 feet east of Portola Avenue and runs between
the Mountain View golf course (holes 13 & 17). A continuation of the 16 foot wide
access road is proposed toward the east, connecting into the Westin Villas project and
construction site (see attached site plan).
The roadway extension would facilitate early morning construction deliveries and
construction vehicle access. Current construction vehicles access the site through the
Villas main guest entrance. Westin will be required to provide a flagman to ensure the
safety of all parties during the use of the access road. As part of the project, a new
electric gate will be installed 150 feet east of the Portola Avenue entrance. Access to
the gate would be limited to the Villas authorized personnel within agreed upon times in
order to minimize interference with golfers and golf course operations.
As part of the agreement, Westin has agreed to pay for the design, engineering, and
construction of the roadway extension. The agreement term is five years with an option
to continue the agreement for an additional five years if the Villas construction is still
ongoing. Westin anticipates building out the 300-unit project by 2021. The agreement
requires Westin to maintain the access road during all phases of construction. Prior to
the City issuing the final building occupancy permit, Westin will be required to remove
the asphalt road and replace it with a permanent 16 foot wide colored concrete roadway
to match the existing access road and golf cart paths.
The mutual access agreement is beneficial to both Westin and the City. Westin will
benefit by having a secondary construction access point that minimizes impact to
timeshare guests, and the City benefits with an improved emergency access road that
will serve the golfers and golf operations. Staff recommends approval.
Fiscal Analysis
The project cost is estimated at $65,000 and will be funded by Westin
Villas ownership. There is no fiscal impact to the City.
Submitted By:
in Alvarez, Redevelopment Manager
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McCarthy, ACM tor-Rodevelopment
uth, City Manager
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Contract No. C31760
RECIPROCAL LICENSE AGREEMENT
This RECIPROCAL LICENSE AGREEMENT (the "Agreement") is entered into as of
, 2012 (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 620-420-012 and 620-430-017 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 620-421-016 and 620-
430-038 and identified on Exhibit "A" as the "Westin Parcel", which Westin intends to improve
with a time share residence project (the "Villas").
C. The parties wish to utilize the existing concrete driveway at Portola Avenue and
improve the City Parcel with an approximately 16' wide x 360' long roadway to connect to the
existing property line of the Westin Parcel and establish reciprocal rights of access in the areas
shown on Exhibit A (together, the "License Areas") in order to facilitate construction vehicle
access to the Villas, 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 City.
(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 emergency access and golf course
maintenance activities.
(b) Maintenance. Westin shall maintain the full length of the temporary access
road during all construction phases of the Villas. 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 1 (a) above, the City shall have no obligation to enter the Westin Parcel and undertake
maintenance activities there prior to completion of the Villas construction. After completion of
the Villas construction and so long as this Agreement remains in effect, City will maintain the
access road on the City Parcel and Westin shall maintain access road on the Westin Parcel.
Nothing in this paragraph 1 (b) shall limit the obligations of the parties under Section 4 below.
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Contract No. C31760
(c) Use Restriction. The City acknowledges and agrees that the City License
may only be used for emergency access and golf course operations, which are currently managed
by KemperSports ("Kemper"). No 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 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 construction access to the Westin
property. Westin shall not use the Westin License until the asphalt access drive has been
constructed by Westin and approved by the City pursuant to paragraph 2 (b) below.
(b) Construction of Access Road. Westin shall construct an approximately 16'
x 490' asphalt paved roadway with 2' of decomposed granite on the north and south sides, except
where new asphalt roadway runs parallel with existing cart path, then 1 ft of cobble on the south
side in between the existing cart path and new asphalt roadway within the area subject to the
Westin License. The total width of the Licensed Area shall be 20' wide. The access road shall
meet all Fire Department requirements. Westin shall construct a new access gate on Portola
Avenue that shall be electric with card or key code activation and shall have capabilities to limit
construction access based on agreed upon time/dates in accordance with the requirements of
Exhibit B. The costs of the permits for, and construction of, the access road shall be paid by
Westin. Prior to commencement of construction, Westin shall submit permit drawings for City
approval, which shall not be unreasonably withheld. Access road shall consist of asphalt during
the construction of Westin timeshare project. Westin agrees to remove asphalt road and install a
permanent colored concrete access road to match existing golf cart paths, prior to final occupancy
approval of the final building on the Westin property.
(c) Maintenance. Prior to the completion of the Villas construction, Westin
shall maintain the area subject to the Westin License in a safe and clean condition at all times.
City requests that Westin maintain the full length of the temporary access road during all
construction phases of the Westin project. After completion of the Villas and so long as this
Agreement remains in effect, City will maintain the portion of the access road on the City Parcel
and Westin shall maintain the portion of the access road on the Westin Parcel.
(d) Use Restriction. Westin acknowledges and agrees that the Westin License
may only be used 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 five (5) years from
the Effective Date (the "Initial Term"), unless terminated earlier due to default. Upon the end of
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Contract No. C31760
the Initial Term, the licenses shall be extended for an additional five (5) years unless either party
provides written 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.
4. Indemnity Each party (the "Indemnifying Party") agrees to indemnity, defend,
protect, and hold harmless Kemper and the other party, and their respective officers, directors,
owners and employees (collectively, the "Indemnified Party"), 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. Westin shall provide
City with a Certificate of Insurance evidencing an endorsement to such policy naming City,
Kemper and their respective council members, board members, directors, officers, employees
and agents (as applicable) as additional insureds.
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.
All Insurance required hereunder shall also provide for waiver of subrogation in favor of
the additional insured. All General Liability Policies required hereunder 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. Each
parry shall also maintain automobile liability insurance containing a $1,000,000 combined single
1442950v1
Contract No. C31760
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.
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.
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Contract No. C31760
(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.
(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.
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Contract No. C31760
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:
WVC Rancho Mirage, Inc., a Delaware corporation
By: _
Name:
Title:
CITY:
CITY OF PALM DESERT, a municipal corporation
By:
Name:
Title:
1442950v1
Contract No. C31760
EXHIBIT "A"
CITY PARCEL, WESTIN PARCEL AND LOCATION OF LICENSES
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EXHIBIT B
Access Conditions
(1) Westin acknowledges and agrees that the Westin License may
only be used during the following Golf Course Hours of Operation listed below with the
exception of any `Special Events', which are defined in line 2 with conditions. All access
within the License Areas shall be one-way in only and under the supervision of a flagman
(provided by Westin) at all times. KemperSports shall have control of access gates at all times
and shall maintain the hours of operation specified below. Any off -schedule access must be
coordinated by Westin with the City and KemperSports management staff in advance.
(a) Golf Course Hours of Operation:
Golf Course Access (Nov.1-April 30)
Golf Course Access (May 1-October 31)
Golf Course Access When Course Closed
Monday - Saturday:
4:00 am - 8:00 am
Dusk - 9:00pm
Monday - Saturday:
4am-9:00am
Dusk - 9:00pm
Monday -Saturday: Sunrise - 9:00 pm
(b) Special Events: All activities approved within this
agreement occurring and outside of the `Hours of Operation' shall be coordinated and approved
by the Desert Willow Golf Course (currently managed by KemperSports) and shall be under the
supervision of a flagman (provided by Westin) at all times. The City (Golf Course Operations)
has the right to limit construction access during `Special Events' (i.e. golf tournaments, photo
shoots, etc.). The City must notify Westin no less than 7 days prior to any Special Event.
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