Loading...
HomeMy WebLinkAboutR24420 - Temp License Agrmnt - PD Funding Co., LPPALM DESERT REDEVELOPMENT AGENCY STAFF REPORT REQUEST: APPROVE THE TEMPORARY LICENSE AGREEMENT ALLOWING PALM DESERT FUNDING COMPANY, LP, THE USE OF THE WELL AT THE 170-ACRE SITE SUBMITTED BY: DAVE YRIGOYEN, DIRECTOR OF REDEVELOPMENT/HOUSING DEVELOPER: PALM DESERT FUNDING COMPANY, LP C/O HOVER DEVELOPMENT 3 SAN JOAQUIN PLAZA, #215 NEWPORT BEACH, CA 92660 DATE: OCTOBER 13, 2005 CONTENTS: TEMPORARY LICENSE AGREEMENT Recommendation: By Minute Motion, that the Agency Board approve the Temporary License Agreement allowing Palm Desert Funding Company, LP, the use of the well at the170-acre site, and authorize the Executive Director to sign said agreement. Executive Summarv: Approval of the Agreement will provide for the conditions and use approval by which Palm Desert Funding Company, LP, can obtain water from our well site on a temporary basis. Denying the agreement would deny such use. Discussion: On December 5, 2002, the Agency purchased 170 acres of land from American Realty Trust (ART) located in the North Sphere. Situated on the southern portion of that property is a well site, drilled by American Realty Trust and sold to the Agency as part of that transaction. In June of 2003, we provided ART with such a temporary license to activate the well site for water in their grading process. Staff Report Approve Temporary License Agreement with Palm Desert Funding Company, LP Page 2 of 2 October 13, 2005 Palm Desert Funding Company, LP, (Hover Development) has, once again, requested the use of that well site since they are prepared to begin the grading of their site for for residential development also an aspect of the CFD. They will use the water as dust control in the grading of their site. Staff has developed a Temporary License Agreement under which the use of that well site would be allowed. Palm Desert Funding Company, LP, will have 100 business days of access to the well site and must begin such use by November 15, 2005. Palm Desert Funding Company, LP, shall restore the property to the same condition as existed prior to such use. They shall provide for all necessary repairs to the pump and motor for use, removal and storage. They shall pay for all expenses incurred by the Agency to include Coachella Valley Water District fees, attorney's fees with reasonable staff and consultant fees, as necessary. Palm Desert Funding Company, LP, shall also indemnify the Agency against all claims and liabilities in their use of the well site. Submitted by: Dave Yrig n Director Redevelopment/Housing Ir bl A roval: Carlos'L.0 ega Executive Director Approval: Kl 4 .111144 McCarthy ledevelopme GARDA\Beth LongmaniStaft Reports\Yngoyen\Temp Uc Agm Palm Desert Funding Co 101305.00c TEMPORARY LICENSE AGREEMENT The PALM DESERT REDEVELOPMENT AGENCY, a California public body, corporate and politic ("RDA"), does hereby grant a temporary license to PALM DESERT FUNDING COMPANY, LP, a Delaware limited partnership ("Licensee") to access and use the irrigation/water well (as identified on Exhibit A attached hereto, the "Well") located on that certain unimproved real property owned by RDA in the City of Palm Desert, County of Riverside, State of California, and more particularly described on Exhibit 6 attached hereto (the "Property"), to transport water therefrom to the unimproved real property owned by Licensee adjacent to the Property (the "Licensee Property") in order to facilitate Licensee's completion of certain soils work thereon, and in consideration thereof, Licensee agrees to comply with all terms, covenants and conditions set forth in this Temporary License Agreement ("Agreement"). As used herein, "License Work" shall mean all of the work to be performed by the Licensee on the Property pursuant to this Agreement. 1. Propertv: RDA is the owner of the Property, RDA's ownership of the Property shall not be affected hereby in any manner whatsoever and Licensee shall not acquire any rights in the Property whatsoever as a result of the License Work except those rights specifically granted herein. 2. Road: Licensee shall, at its sole cost and expense, construct a gravel -finished access road to the Well from Frank Sinatra Drive in approximately the location identified on Exhibit A attached hereto (the "Road"). 3. Pipes: Licensee shall, at its sole cost and expense, install pipes/hoses to the Licensee Property from the Well over the perimeter of the Property in approximately the location identified on Exhibit A attached hereto (the "Pipes"). 4. Pump: Licensee shall, at its sole cost and expense, cause Southwest Pump and Drilling, Inc. to perform all reasonably necessary repair and maintenance work to RDA's pump motor for the Well (the "Pump"), and upon completion of such work, arrange for the delivery and installation of the Pump at the Well. 5. Power: Licensee shall, to the extent necessary, provide a power source (whether portable or permanent) for completing the License Work, and shall pay all costs and expenses associated herewith. 6. Water: Licensee shall, at its sole cost and expense, meter the amount of water pumped from the Well by or for the benefit of Licensee and pay either RDA or the Coachella Valley County Water District ("CVCWD") therefore at the rate charged by CVCWD. 7. Term: The temporary license granted by this Agreement shall commence on the date that Licensee begins the License Work on the Property (the "Commencement Date") and, except as otherwise provided herein, shall terminate at 5:00 p.m. (California time) on the one hundredth (100th) business day following the Commencement Date (the "Term"). Except as otherwise provided herein, this Agreement shall automatically terminate at the expiration of the Term. Should Licensee need to pump water from the Well following the Term for purposes of dust control on the Licensee Property, or for other documented reasons beyond Licensee's control, RDA will extend the Term for a period of not to exceed thirty (30) business days. Additional time may be approved by the City Manager at his sole discretion however no longer than an additional 90 business days. Notwithstanding anything to the contrary contained herein, this Agreement and the temporary license granted hereby shall automatically terminate and be of no further force or effect if the Commencement Date does not occur on or before November 15, 2005. 8. Control: Licensee shall also be responsible, at its sole cost and expense, for controlling the use of the Road, the Pipes and the Pump so that it is only used by Licensee and its agents and contractors with this Agreement. 9. Restoration/Removal: Licensee shall, at its sole cost and expense, restore the Property to substantially the same condition that existed prior to the License Work within thirty (30) days after the expiration of the Term (including removal of the Road and the Pipes). In addition, Licensee shall, at its sole cost and expense, arrange and pay for the removal and delivery of the Pump to a storage facility designated by RDA. 10.Additional Covenant: All License Work shall be completed in accordance with all applicable governmental laws, ordinances and regulations at the sole cost, expense, risk and responsibility of Licensee. 11.Reimbursement: Licensee promptly shall reimburse RDA for (a) all third -party (including attorneys, consultants and inspectors) fees and costs incurred by the RDA in connection with the matters contemplated hereby, and (b) the value of the RDA staff time spent dealing with the matters contemplated hereby (as reasonably calculated by RDA). In addition, if Licensee fails to perform any of its obligations hereunder, RDA may cause such obligations to be performed, and Licensee shall be liable to RDA for all costs incurred by RDA in connection therewith. In the event Licensee fails to reimburse RDA for any of the foregoing within fifteen (15) days of demand by RDA, the same shall become a lien on the Licensee Property. Furthermore, in the event RDA must maintain an action to enforce any of the obligations of Licensee hereunder, and is successful in such action, licensee agrees to pay all costs and expenses, including reasonable attorney's fees, incurred by RDA in connection therewith. 12.Indemnification: Licensee shall defend, indemnify and hold RDA free and harmless from, and pay in full, any and all claims, liabilities, demands, losses, damages or expenses that RDA may sustain or occur in any manner resulting from the License Work (whether the construction, installation, removal, maintenance, use, repair, replacement or presence thereof), including any and all injuries (including personal injury, disability, dismemberment and death), illness, losses, loss of or damage to CADocuments and Settings\blongman\Local Settings\Temporary Internet Files\OLK15\19DA Temporary License Agreement.doc property, damages, claims, liabilities or expenses of any kind or nature to any person that is not caused, or alleged to be caused, by the negligent acts or omissions of RDA or its agents or employees. The obligations of Licensee under this Section 12 shall survive the expiration of the Term and the termination of this Agreement. 13.1nsurance: Licensee shall maintain a policy of liability insurance issued by an insurance company that is admitted and licensed to do business in the State of California and that is rated A+VII or better according to the most recent A.M. Best Company Rating Guide, with RDA and the City of Palm Desert named as an additional insured, that has an aggregate liability limit (subject to commercially reasonable adjustments) of at least Two Million Dollars ($2,000,000), and that will protect RDA from any claims that may arise from the License Work, including those for which Licensee is obligated to indemnify RDA against hereunder. 14.RDA Work: Licensee's right to perform the License Work is subject to RDA's right to perform work on the Property from time to time provided it shall give reasonable prior notice to Licensee thereof and shall use its best efforts not to unreasonably interfere with the License Work. 15.Notice: Any notice, request, direction, demand, consent, waiver, approval or other communication required or permitted to be given hereunder shall not be effective unless it is given in writing and shall be delivered (a) in person, (b) by certified mail, postage prepaid, return receipt requested, (c) by facsimile, or (d) by a commercial overnight courier that guarantees next day delivery and provides a receipt, and addressed to the parties at the addresses stated below, or at such other address as either party may hereafter notify the other in writing as aforementioned: Licensee: Palm Desert Funding Company, LP 3 San Joaquin Plaza, Suite 215 Newport Beach, California 92660 Attention: Mark Smith Fax No.: (949) 644-7649 RDA: Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, California 92260 Attention: David L. Yrigoyen Fax No.: (760) 341-6372 Service of any such notice or other communications so made shall be deemed effective on the day of actual delivery (whether accepted or refused) as evidence by confirmed answerback if by facsimile (provided that if any notice or other communication to be delivered by facsimile is unable to be transmitted because of a problem affecting the receiving party's facsimile machine, the deadline for receiving such notice or other communication shall be extended through the next business day), as shown by the addressee's return receipt if by certified mail, and as C.\Documents and Settings\blongman\Local Settings\Temporary Internet Files\OLK15\RDA Temporary License Agreement doc confirmed by the courier service if by courier; provided, however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or on a non -business day, then such notice or demand so made shall be deemed effective on the first business day immediately following the day of actual delivery. No communications via electronic mail shall be effective to give any notice, request, direction, demand, consent, waiver, approval or other communications hereunder. 16.Counterparts: This Agreement may be executed in one or more counterparts, each of which shall be deemed to constitute an original, but all of which, when taken together, shall constitute one and the same instrument, with the same effect as if all of the parties had executed the same counterpart. 17.Successors and Assigns: This Agreement may not be transferred or assigned by Licensee without the prior written consent of RDA, which consent may be granted or withheld in its sole discretion. 18.Governinq Law: This Agreement shall be governed by and construed in accordance with the laws of the State of California. IN WITNESS WHEREOF, THE PARTIES HERETO HAVE ENTERED INTO THIS TEMPORARY LICENSE AGREEMENT AS OF SEPTEMBER , 2005. RDA: PALM DESERT REDEVELOPMENT AGENCY, a California public body, corporate and politic ATTEST: 0 M Rachelle D. Klassen, Secretary Carlos L. Ortega, Executive Director LICENSEE: PALM DESERT FUNDING COMPANY, LP a Delaware Limited Partnership in Thomas I. Hover, Managing Member CADocuments and SettingsWongman\Local Settings\Temporary Intemet Files\OLK151RDA Temporary License Agreement.doc EXHIBIT A LOCATION OF PIPES, ROAD AND WELL (See Attached) CADocuments and Settings\blongman\Local Settings\Temporary Internet Files\OLK15\RDA Temporary Ucense Agreement.doc