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HomeMy WebLinkAboutSR - R19820 - 4th Amnd to OPA - American Invstmnt PtoPCONTRACT NO. R19820 PALM DESERT REDEVELOPMENT AGENCY STAFF REPORT REQUEST: APPROVE FOURTH AMENDMENT TO THE OWNER PARTICIPATION AGREEMENT WITH AMERICAN INVESTMENT PALMS TO PINES EAST LLC FROM: CATHERINE WALKER, SENIOR MANAGEMENT ANALYST DATE: MAY 24, 2007 CONTENTS: FOURTH AMENDMENT TO OWNER PARTICIPATION AGREEMENT BETWEEN AMERICAN INVESTMENT LLC CONSTRUCTION AGREEMENT BETWEEN AMERICAN INVESTMENT AND SHELLMAN ENTERPRISES FOR COMPLETION OF PHASE III LETTER REQUEST FOR EXTENTION Recommendation: By Minute Motion, that the Agency Board: Approve the Fourth Amendment for improvements to the property pursuant to the Owner Participation Agreement between the Agency and American Investment Palms to Pines East LLC; and 2. Authorize the Chairman to execute the Agreement incorporating the changes. Executive Summary: The proposed Fourth Amendment to the Owner Participation Agreement will allow American Investment Palms to Pines East, LLC an extension of their Commencement Date for Phase III from May 15, 2007 to June 18, 2007. The Completion Date is to remain the same, October 30, 2007. Phase III site work includes the Facade Enhancement to all the businesses fronting El Paseo. Mr. Glasser has completed Phases I and II as outlined in the Second Amendment. Mr. Glasser has also contributed an additional $125,000 utilized first in the renovation, prior to the Agency's additional funding. Mr. Glasser has secured $2,249,016 for the completion of Tweeters, 99 cent Store, and Staples. The Agency's total contribution to the Palms to Pines rehabilitation of $2,157,820 will not change, and will still represent approximately 48% of the total cost of the development, which is $4,531,836. This time delay reflects the wishes of the merchants currently located in Phase III of the development. Attached is the Third Amendment to the Owner Participation Agreement, which has been executed by Mr. Glasser, and the Construction Contract between Shellman Construction and American Investment LLC, (AI), which outlines the improvements to be performed on Phase III of Palms to Pines East. G \rda\Cathy W alker\W p Data\Slaff for furth Amendment to the OPA Palms to Pines wpd Staff Report Approve Fourth Amendment to OPA with American Investment Palms to Pines LLC Page 2 May 24, 2007 Discussion: On July 8, 2004, the Agency Board approved an Amendment to the Owner Participation Agreement ("Agreement") that superseded the earlier Amended and Restated Owner Participation Agreements between the Agency and American Investment Palms to Pines East LLC, dated February 26, 2004 ("OPA"). Both of the Owner Participation Agreements were to provide assistance to American Investment Palms to Pines East LLC in the renovation of the Palms to Pines East Shopping Center. The time extensions granted on July 8, 2004 to American Investment LLC by Agency Board established a Commencement Date of July 15, 2004, a Completion Date of March 14, 2005, and granted a delay in construction (Holiday Season from November 11, 2004 through January 15, 2005). In the Council action of October 27, 2005, American Investment was granted an additional schedule delay extending completion of Phases I and II to April 30, 2006, and Phase III (facade enhancement to Building No. 5) to October 7, 2006. The Council action also granted American Investment additional funding in the amount of $857,820. The last Council action of December 14, 2006 granted American Investment an extension of the Completion Date for Phases I and II until May 15, 2007. Phase III was given a new time line, with the Commencement Date being May 15, 2007 and the Completion Date established as October 30, 2007. As of today, American Investment has completed Phases I and II, and has only been reimbursed by the Agency for work completed. Phase III (facade enhancement to Building No. 5) funds in an amount of $414,017 have not been released, as work has yet to proceed. American Investment is requesting that the Commencement Date for Phase III be extended to June 18, 2007 to accommodate the existing tenants' business schedule, and the established Completion Date of October 30, 2007 is to remain in place. These changes are as follows: Phase III (Commencement June 18, 2007/Completion Oct.30, 2007) • The facade improvements to Building 5 fronting El Paseo The Site work for these phases is identified in Exhibits F and G of the Owner Participation Agreement. Attached are the signed agreement between American Investment LLC and Shellman Construction and the Third Amendment to the OPA, which has been executed by Mr. Glasser. The Agreement between Shellman Construction and American Investment LLC outlines the scope of the project, and states that Shellman Construction will still perform the work as determined in the OPA for the costs as established in the Second Amendment. G:\rda\Cathy Walker\Wp Data\Staff for Furth Amendment to the OPA Palms to Pines.wpd Staff Report Approve Fourth Amendment to OPA with American Investment Palms to Pines LLC Page 3 May 24, 2007 Staff would recommend that the Board approve the Amended Time Line incorporating the above -described modifications to the Agreement, and thereby facilitate the completion of the project. Submitted by: Catherine Walker Senior Management Analyst mh Approval: t / Carlos L. Ortega G:\rda\Cathy Walker\Wp Data\Staff forfurth Amendment to the OPA Palms to Pines.wpd Department Head: Dave Yri�o Direct f Redevelopment/Housing Paul S. Gibson, Director of Finance &_a&VeJI3Y RDA OrJ '5- 9�-D� VERIFIED BY 1 W Orighal on file th City C k's Office Contract No. R19820 FOURTH AMENDMENT TO OWNER PARTICIPATION AGREEMENT THIS FOURTH AMENDMENT TO OWNER PARTICIPATION AGREEMENT ("Amendment') dated as of May _, 2007 ("Effective Date"), is entered into by and between the PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency") and AMERICAN INVESTMENT PALMS TO PINES EAST, LLC, a California limited liability company ("Developer"). RECITALS A. The Agency and Developer have previously entered into that certain Owner Participation Agreement, dated as of March 25, 2004, as amended by that certain letter agreement dated July 22, 2004, that certain Second Amendment to Owner Participation Agreement dated October 27, 2005, and that certain Third Amendment to Owner Participation Agreement dated November 16, 2006 between the Agency and Developer (as so amended, the "OPA"), which affects that certain property located in the City of Palm Desert, County of Riverside, State of California, more particularly described on Exhibit "A" attached to the OPA. B. The Agency and Developer wish to amend and modify the OPA as hereinafter set forth in this Amendment. AGREEMENT NOW, THEREFORE, in consideration of the terms of this Amendment and for other valuable consideration, the receipt of which is hereby acknowledged, Agency and Developer agree as follows: 1. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the OPA. 2. Section 2.2.3 of the OPA is hereby deleted in its entirety and the following is substituted therefor in its place: "2.2.3 Schedule of Performance. Owner shall commence construction of Phase I and Phase II of the Improvements (each as described in Exhibit A attached hereto) on or before October 28, 2005, and shall commence construction of Phase III of the Improvements (as described in Exhibit A attached hereto) on or before June 18, 2007 (each of said October 28, 2005 and June 18, 2007 dates being herein referred to as a "Commencement Date"), and shall complete such construction of the Phase I and Phase II Improvements by April 30, 2006, (the "Phase I and Phase II Completion Date"), and complete such construction of the Phase III Improvements on or before October 30, 2007 (the "Phase III Completion Date"). Without limiting the provisions or effect of this Section 2.2.3 or Section 3.1 hereof, the construction of all of the P6402-0459\972966v Ldoc Contract No. R19820 Improvements shall be completed on or before October 30, 2007. For the purposes of this Agreement, the completion of construction of each Phase of the Improvements shall be evidenced by a contractor's and architect's certificate to be provided by Owner, and reasonably acceptable to the Agency as to form and content, and certifying that the construction of the subject Improvements has been substantially completed in substantial compliance with the Final Construction Drawings and the plans and specifications approved by the City, except for specified "punch -list" items that do not impair the function or use of the subject Improvements (the "Certificate of Completion"). Subject to the provisions of Section 7.7 hereof, if Owner has not commenced construction of each Phase of the Improvements by the corresponding Commencement Date set forth in this Section 2.2.3, or completed construction of each Phase of the Improvements by the corresponding Completion Date set forth in this Section 2.2.3, then Agency may, in its sole and absolute discretion, terminate this Agreement upon ten (10) working days prior written notice to Owner and Owner's failure to cure within such period, and the Agency shall automatically be released from all of its obligations under this OPA, including but not limited to its obligation to pay the Agency Consideration to the Owner; provided, however, the Agency shall pay for Improvements completed as of the date of such termination." 3. Except as specifically modified hereby, the OPA shall remain unaffected and unchanged by reason of this Amendment. 4. The OPA is hereby ratified and affirmed by Developer and shall remain in full force and effect as modified hereby. 5. This Amendment shall bind and benefit the heirs, successors, and assigns of Developer and Agency, respectively. 6. Nothing contained in this Amendment shall be construed as giving any person or entity, other than the parties hereto, any right, remedy or claim under, or with respect to, the OPA. 7. Developer acknowledges and agrees that if and to the extent that Agency has not heretofore required Developer to strictly comply with the covenants, agreements and obligations contained in the OPA, such action or inaction shall not constitute a waiver of, or otherwise affect or prejudice Agency's future rights, remedies, benefits or powers under the OPA in any manner, including the right to require performance of such covenants, agreements and obligations strictly in accordance with the terms and provisions of the OPA. 8. The OPA as modified by this Amendment constitutes the final expression and the entire and exclusive agreement of the parties hereto with respect to the subject matter hereof, and supersedes in all respects any and all other negotiations and agreements between the parties hereto, whether oral or written. P6402-0459\972966v 1.doc G \rda\Mana Hunt\WPDATA\WALKER\Contracts\Palms to Pines Alternate Fourth Amendment to OPA DOC 2 Contract No. R19820 9. This Amendment shall be governed by and construed in accordance with the laws of the State of California. 10. If any court of competent jurisdiction determines any provision of this Amendment to be invalid, illegal or unenforceable, that provision shall be deemed severed from the rest, which shall remain in full force and effect as though the invalid, illegal or unenforceable provision had never been a part hereof. 11. No provision of this Amendment may be changed, discharged, supplemented, terminated or waived except in a writing executed by the parties hereto. 12. In executing this Amendment, neither party has relied on any inducements, promises or representations made by the other party or its attorney, other than those set forth herein. 13. This Amendment may be executed in two or more counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. [signatures begin on next page] P6402-0459\972966v1.doc G:Vda\Mana Hunt\WPDATA\WALKER\Contracts\Palms to Pines Alternate Fourth Amendment to OPA DOC 3 Contract No. R19820 WITNESS the signatures of the parties as of the date first set forth above. ATTEST: Rachelle D. Klassen, Secretary PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic By: Name: Richard S. Kelly Title: Chairman AMERICAN INVESTMENT PALMS TO PINES EAST, LLC, a California limited liability company By: Name: Title: By: Name: Title: P6402-0459\972966vl.doc GArdaWana Hunt)WPDATA\WALKER\Contracts\Palms to Fnes Alternate Fourth Amendment to OPA DOC El Contract No. R19820A EXHIBIT "A" PHASES OF CONSTRUCTION OF IMPROVEMENTS "Phase I" shall consist of the site work improvements fronting Highway III and adjacent to the Staples building, along with the site improvements bordering the El Paseo, each as more particularly delineated and described on the Site Plan and description of Common Area and facade improvements attached to this Exhibit A. The aggregate amount of Agency Consideration to be paid with respect to the Phase I Improvements shall not exceed $1,201,482. "Phase II" shall consist of facade improvements to building No. 2, as depicted on the Site Plan attached to this Exhibit A. The aggregate amount of Agency Consideration to be paid with respect to the Phase II Improvements shall not exceed $405,157. "Phase III" shall consist of facade improvements to building No. 5, as depicted on the Site Plan attached to this Exhibit A. The actual facade improvements to building No. 5 will be attached to this Exhibit A following their approval by the Planning Department and the Architectural Review Committee of the City of Palm Desert, the Agency and the Owner, and their incorporation into the Owner's construction contract attached hereto as Exhibit B. The aggregate amount of Agency Consideration to be paid with respect to the Phase III Improvements shall not exceed $551,181. P6402\0459W6614.5 A-1 J LIi `L,:c' I_t'.} = i'Sli_t'.:_I l ;a ! ": I I•ir::.!-! l ! -ia .. : .�: ;gym .-.•i--..- — -a.`�� t 3�.x ...s. - OWNER: American Investment/ Palms to Pines East. LLC Laguna Beach. Catliomia 92651 -r7 :_{{-1 CONI"RACMI?• Wet Shellman eEe: :�_ :;rs 0. L•L': �!: y ,... Ott. Riverside, Colltomis 92503 Facslmlle (951) 352- 7373 -- Federal Tax L O, or FICA No.:33- 1105304 FOR THE FOLLOWING PROJECT., Improvements to Buftnp # 5 RELEVANT DATES: Comnvncar»ent Dqt&: Mey 1!5, 2007 l:lT itfdi`tfji7 t= Pew £C l:�7f f;G.� : -lc; 'WW'1 Eli `-TRf-"�, a 3'.'it` Fink= e.*E7r?ei � E�Yi agree as folk+virs. i. t;ONTR'ACT DOC(MOENT <ihe contract documents ("Coniracat Docurnents') shalt be crinprised Of the tallc+wing: This Agreement (ess it may be modified pursuant to its terms); Tl;e Veneral conditions ("General Conditions') attached here to as Exhibit "A-i ": The plans and specifications {Plans and Specifrcations'x , if any, attached hereto i;; rrA-2,!. { Ttte performance and tabor and material payment bonds, if any, identified in the General c or.-dii:uns: 11,a jolt 13;vicedurai a.ad!nstr=,dons ,manuW (Job ilanua,") if any, art ached trr^i cto as Exhl ,', .:A-:Y;, ` The protect safety r:?gnv-gI f `S9ietv 1U3,,nu3: ;, Wan},, atteched hereto as * the instruction to bidders ("instructions Tor Bidders'), ifany, attached hereto as Exhibit *A-b". D ;cements k-, m the Agreement. Nothing contained in the Contract Documents shall b,,-Sv3en 0vvn6?r and anv Subcontractor or sub -Subcontractor of .ContrV ctor.�.haLl,,Fw'."''th.�.•,r.wervition .V-tff 0Z'tafi a- d =tsf` ,CtV tv*ni. lceuf'.r MP.-fWAPJti:img n,rin+.`eras P riurrtt and compioie tit a rgouo, expeditious and wvrkmaniike mariner, rice Work ( "Work 't 92 adore pamcuiaiiv oes-crAtuti In life the Coniraci uucuinerus and tits; General Cundii urts. 3, COMMENCEMENT AND COMPLETION. r�t,m ac;CJ' Sh$it com, maooe the Wor k Y :.�;s "Comt:�e: men: Claile"as spaCrt a a^ wage "f "ut ;his Agreement. Subteci is adjustments approved by Owner in accordance with the Genera! Conditions. Cantractor .she, !'u nv $.'4.'M'i er::.rev the 19;6e r : , 1t,N.? . ^:if - ..,.^.^ fis" %:o?Mn :. rim C ompteiron bate as specified an Mane "fi' of this Agreament, and give Owner wrltien notice thereof J:!C� ^1 �rsntYnF,yr': ='rc r.if'9 eve it rl1 s J'nnt .a, yfw r•vm, J i N i the i 16 i.r i1v s�r-i ;? o owper rhs Sum f--!@ I.Jurs'ur4c D,,_ ai,t A.1.- !^.g111*' N','it'A : % �srvl= -tar "se% toritt rn the 3aRFa�ute o; valves attacf7 har$t� as F�hfhrr �" art, ?kznC C !-Ili r!.. r.�nrocc�rmonr pr!-r,�rf��n an�iJ n� jn lija inr+-n nilao r I;.:.,�• 7T'T �s ran /�' f J:� ar,� vra!e !n ��,Jnq ri-p sat lUrilf it, inn JLnrUL!ty ut vaitles a tacoeo netew B$ Exiriot! .-j _ !-'rttC�te B !"'aYrria;'tf ']£-• ++GV If! [c!T ft feF&IMt?f !i irlC t-n et VWv vi'••9r A!• do e `_ _• - _� u!� — _.._� �'7. .�c�i i�.. Yr.A�:. �..� � '�!'.J= �.=.. �.X ~ram . ._ �_ � .- � . .. ... .==flyt! r`+r5 tt J%!tY1 {::lfYi ?:iC: `�it!C::! Gf:%iF7ErE.'•`.: 'r, t!t'a t't't!"'H V, F!!{:1? 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Beglnning with fhe second payment request, s property carnpfeted ► rncondit;^^. ! of Lien and Waiver of Claims form coveting the provicus .:, 'i S; rbe�a�' cter atem2nt and al progdate ROS,*se Lien' and Waiver of Claim .- _• +ti:+`r%'.J. �_:'l;ti:.. ...-J.J..�s: ;i>?i�jiir=Y� ij Rl,'} -�i l!'iJ�.jiii7.°j.�f.'ri (`rf f;ei iti'rlr; (:i Each. 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C21iff Ais i Lkh;il,7.F,Jiog.:_ W74r v;rii. r*rrif +c l:^n;:mortar the A-wirPss PRyme7t less 3 reiairraaP of terr nz'rrent !IJAA' and !ass . rvt:r,!i4i>f of z:iedo ! t:} w�fw�ti it�� (xrir: =Yr'u '�wtp r ! J:'+zntiii: '-V,iPj1 S•-Q!?tr8efor NnSiaerS that he hes roe! el! of his obfiogtions udder the &ntract Document: uoi,zr acior &iait &;anh'y so z,Ji3p er Low trio vvom is con we fn accoroan ce wgn fne (+i'itifract currrarrts. S11bk?ct to Me General Reen (15) dave afie3r!he issuance of'a itirii�Ja vi i:onip jetfofi, t,:Ontrraaol, shah Surat?ei 10 uwn er nis ru►ai AiErhue oaun lup raynowt, wl, uii s%,alp set OH r,mntrnds duo B'iC an/..l' an Bsfimete of elt minor work to be 2CCC/7?CllSl1E� ti 6d o tiw,ixii&1SO.r 0 G0.770i1aiWe wiwi tnis Agreelt eni, %wrier snaii Griu&& a i*V ixe V [ !"ni."'r7ii?iii/.^. fw .rs-.- M:;Orrdvu -Y P?a D U rf V ! i her f~c rnr,e14v! to d Y �. 117_-n ! Da ..J y rf ;. :: .:: Y .• %S i`:4�7..v... J i .�J.�. Ca _�:��ra J+'JQf. ..- _ _.. � u_. _ ____ _ .__ ..irl..c ...,: aj.•-�•aJlS (JVJ uvj'S ifrCl C7gfeCl. OC)WC t-tl ltft P`etyate►,r {S Irltluer, vUdlLl tlL(Ut tlltitil Yukrr tltr recluiranietits uF Eats s,greemenz, trie:►wmig w►uiout wrrl in its General Leiricaipv,i3. .-.t tj., -{•rho JL... IL).`�I J"•v..�__..n,.,.. h 4d a�_ �. ��y � �_ � �r+� - .f+�-- _ _ _ J: _ cv r,. v 1'2�i ..+- a.:v Y�'v il. ,! :1:. VVSY• `a•��ri- rJ J M'�wi iN. .] - Y+HH �Y�" ri '! ��' •!a':: ._ � _ _ + C%' . rii$ Opld rniioh*. to we7eieif.4lui Wren ties 1 &M, vl th CallOW8 6EX&pi&&& 10 t iW &r, t4rr301100 the Ci&ti & r egfufrBrneias sai Tomi ire wa iiienera, cofiuiitons- ano F►rOif►eitng For u* tc*owirty furs. rrGJtiviS i.ili,ijypt;iti(}fr b►ev �YPijitvrvr� ►.iftirlNev irt5idrarie:er art rrtif r&o� [r►ari: tle►FW,wV cowl Ovooefii f0f Liuc]ffy MJeWy Ojr &GO10wrii, OD4,rv,twv pJwt4y AMA k-pt ftUuirV fruuir uy ur3eru6t. ^5K000 macho er7mp!oyee for bodilyin;U-T by disee;e_ o- Commercial General Llablirty of not less then: �e 3 ..�. WOW 21 Rase Caul_ 9 Oft 6 'i�...11.. • I:L� .lr(tfJi'�rffia' cis ,`•: `Cr?.r �i?t .'- Of' ,VILJC:l it elia.s rlt�rr?e€jG: $1,000,000 for personal a0 erthRing injury llablllty, $1,000,000 aggregate for products -completed operations; $1,000,000 general aggregate. Automobile Liability of not less then: $1,000,000 combined single limit each accident for bodily injury and property damage. x Excess Coverage of not less than. $1,000,000 each occurrence; $1,000,000 general aggregate_ Contractor sho provide a Waiver of Subrogation endorsement under his Worker's Compensation lnsuranoe Mat contains the fallowing wording: We have the right to recover our payments Jbm anyone Rabic for an #duty covered In this policy. We wiry aot anforve our rfglrts agOmf Me perms or onjenkaobn named below (M agreement applies only to the extent that you perform work under written contract that requires you to olbtakt this agreement from us)." The CartiffcWo of 1n9wvm * sheN provJde lbrthe to/louring as addNona! insureds' American investment(Palrns to Pines East, LLC, Alec J. Glasser, AJG Property, LP, the Glasser Family Trust; arid.' or all Members, Directors, Ofirieers, Ownem and Employees thereof. The Description of Work ;n the Certificate of Insurance shall be for Vie project fs described on page one (1) of this Agr+eerrrent arras shell cower the Scope of Work as provided in flits Agreoment- 8. MISCELLANEOUS PROVISIONS, A. Govemk* taw. TMs Agreerrrerrf shad be Qovamed by the lawn of Me Siaft of CaMMM, B. Entire_ Agreement Phis Agreement supersedes all prior negotiations, proposals and Lmaerstandings, if any, Alxgher written or oral, of the parties hereto, aW coMtNrdes the entire understanding of the parties with r ftrence to the Work. This Agreement may be amended only, by a Chang$ Order issued purouant to Article u of the General Condriions or a wrftir,_v signed by bc`h varfies. C. suc"ss,:s_m Wd Assicns. Owner and Contractor each ninas user#, its successors, assigns and legal representatives to the other party hereto and to the successors. assigns and legal rP!?-+F9^�relfYr.S nssEM.f� CS3l3P.r LSPS!f'/}!7: P.'RtSP_^r tr, a;; r_nt=analnts, agreements and nh4a*ionS rnrraineri in ;�e C�rrtra'�r ocF�.7renis. This Agreement no be assigned by ©wmerincluding an assignment to 2 ?!' 1E17t�`E°YSl f�i0:'tL{%7C+ r1T91?�'f!1 icr H?9 Prvec; VV:yk (?:� ¢hp fu'a. rr T'r t i:� nr e; TFss Contractor shall not assign th>; Agrearnan-t or any port or, ��,'i _!'' h ?4;31", r;.Oh l; tirr',� Fia�f Me !WV 6f esorvorts of the Work. ;"3:: 1-:0rri cC!,,, aSSIw7.,1>rr I C•: l"rii rfa 7 iC r�-cerva CO i=ic Z)Y.:' :"ji:' •a7.-'.' ..<T•v. _>�ot:3- ;v;3r; ; ir5JiE d+i6L ti>ar i,t� r�S:iti`i:rrd;7i tt2S [P t n]a �a_ ft] SU;ft t�vatTF. arty USitifii rti :. 4p4i cr] :J rya tj,:�rir,t r►Ta[Fi to tnrlctde 81r +'C"rfr C:or's Subconteactors 8'7!y their CVOW o. WMmn1 4 rans6imtAnl AeAt jF`'r czr�rta.a�a rbwr r<a�+as J�-i;'._��i,•' �(_i!_li. :l_.:��� j._j.?'; ,'i,i?I_i _` i-i{�i'.i:'�I,i.:i=:{{ .I{I'�°L-;-;1�'�11_{`{I �'- 1�:� iVieelr �1ri=^4 f4m- dement in the Ganeral Gonrlit on,st D. Semerab,llih!. if any one or more of the prov14lons contained in this Agreement or tfre application thereof to any persons or circumstances, shall for any reason be held to be invalid, illegal or Unenforceable in any respect, such invalidity, illegalrly or unenforceability shag not affect any other provisions of this Agreement or Its application to persons or circumstances other than those as to wh1oh it was lnvelld, lNegaf or unenforceable, but this Agreement shall be construed as if such In valid, illegal or unenforceable provision had never been contained herein. F_ Remedies Qumulative. AN rights and remedies of the parties hereto are cumulative and In addition to those existing at law or in equity, and the exercise of any one or more thereof by either party hereto shall not be construed to constitute a waiver of any others, and the waiver by either party hereto of any breach or default on the part of the other patty hereto shell not be construed to constitute a waiver of any other breach or default. F. AbMaj%' Fees. If the parties become Involved in Iftetlon or arbitration wfth each other arising out this Agreement or otherperformance manse thereofin which the services of an ettomey or other expert are reasonably required, the prevailing party shall be fully compensated for the cost of its pardcipatim In such pmceedfngs, Including the cost Incurred for attorneys' fees and experts' fees. Unless Judgment goes by default, the attomeys' ke award shad not be computed in accordance with any court schedule, but shall he such as to fully reimburse all attorneys' fees ad uaNy incurred in good faith, regardless of the size ofa judgment, it being the intention of the parties to be fully compensated for all attorneys' tees and experts' fees paid or Incurred In good felth. 0. Smart kkWa0 The headings of the several Articles and Sections of this Agreement ate inserted solely for convenience of refer nce and they are not a part of an are not intended to govern, limit or aid In the construcHan of any term or provision hereof. H. P4hW anshbb of Parties Nefther this Agreement nor any of the other Contract Documents shall be construed as creating a general agency or partnership between the parties, and Owner and Contractor strati have no authority, express or implied, to bind each other, except as speciNcany provided he►em. Con&actorsnd Owrwdo, however, agree to cooperate with each other to facilitate the timely and economical completion of the Worts In accordance with the terms of the Contract Documents. I. SLdwdi otion. Contractor does hereby subordinate any and all liens or Nan claims which N may now or at any berme hereafter have to secure payment of any sums now or hematler owing by Owner to Cartrador under the terms hereof to are K*n or &W given or created to secure the repayment of any eonstrucaon loan or loans made to the Owner in conrnecUm wft are Project Wak Contractor shall execute promptly upon request such other or further agreamenta evidencing such subordination In such form as any such lender or landws shall require. Nothing contained in thls Section shah be construed to Me lien rights that Contractor word otherwise have. ,i. Naku. All notices, requests, and demands of any kind which etihe► party hereto may be required or desires to serve upon the other party hereto shy be in wrfikgg and shall be served upon such other party bypenwnatservice or by maftV a copy thereof by certilfed mail.. postage prepai with return receipt requested addVessed to the address of such party set forth in this Agreement or f!y faes'mlte pn�,/Ided answerbackconf3rm ban of the entire notice is received and notice f s thereafter conNyr:ad by registered or cer~ mail marked 'Previously Delivered by Facsimfle ", or by a reputable overnight courier service. in case of sen ice by mail. sandcs shall be deemed Cc,ms;tete er `hv dot. of actual deirvary as shown by ftte addressees register1ty or certified mail receipt or at the ex'airs+lcf. c- i;�e fr,rd bus!-IeSs nay after Me date of maiirg. whichever first occurs. In case of service by :sr,simife. upon receipt at ff1B facsirnrre number as evidenced by the answer back mechanism of free fac—Timile machine. and in the case ofaeth;eI;- b. couner's aehvery reawpr. The addresses to wnicn and ire perwing ro wr?cun notwe-* and damarda shall be delivered or sent may be changed from time to time by notice served as hereinabove provided by either party upon the other party. (, E.,r ., .'i, i:.l(. I?:o ,i,. I,',i•',!.??ii i.:i�i.C, ld`'1+:.{'•. J.I, �h a{'i �.{'i ^'L:'t ii I r' '����'i�.t..�.�s;�. �iy7 ley'tt�i'{SlLirye'.1°k::��'i:��'= 1.lJ�f>♦ilft'1`1C�.�,+C�7i�/r `!� ''!'«�l�a'y' v, F'9'I1,`r;'. ernes ondenas, fastructione, drmvings, reesipts, vouoherr, memoranda arrd sinVeardate relativg ter f►e' 6'irot'k duthlo reaSon0rle3 bushes hover , and Cuaotractor ,hall preserve all such reirircl,: for period of Cure (6) years after vompletion of fire Wok. M. Intaroretatlon. Math Owner and Contractor have, whir the assistance of their respective ceounse 1, a0vely negotiated the terms and provisions contained In the Contract Documents. Therefore, Owner and Contractor walve the effect of Cahfomlee Civil Code §16b4 which Interprefs tincertainties in m contract against the pally who drariied the contract. N. Mayle-WintereestRate. Whenever Contrectorisobligafedtopay Owneranysums pursuant to this Agmamant, the outstanding balance owing QwnershaN bear Interest at the Stipulated Interest Rate (as deef had In the Genets/ Condidans) from the date due until paid. O. S rvival of fohts, Any indemnity, wermntyorguaranty given by Contractor in the Contract Documents shall survive the expiration or term/noWn of this Agreement and shell be binding upon Contractor until the later of (1) any acfbn Mensunderls barred by any applicable statute oftlmitations, or (2) such date as any claim or action for which indemnife on may be claimed Is fulty and tlrnelly resaved, and, If applioable, any comprom/se thereof erludgment or award therein is paid in full by Contractor and Owner or any other indemnified party Is ralmburaeed for any amounts paid In compromise thereby or upon a Judgment or award thereon and in defense of such action or dahn, including actual attorneys' frees Payment she ft not be a condition precedent to the enforcement of any of the indemnity provlsbns In the Contract Documents. CONTRACTORS ARE REQUIRED BY LAW TO BE LICENSED AND REGULATED BY THE CON7RZ4CTORS'STATELICENSES04RD WHICHHASJURISD/CT1ON TOINVESTKMATECOMPLAINTS AGAINST CONTRACTORS IFA COMPLAINT IS FILED WITHIN THREE YEARS OF THE DATE OF THE ALLEGED VIOLATION, ANYQUES77ONS CONCERNINO A CONTRACTOR MAYBE REFERRED TO THE REGISTRAR, CON7RACTOR'SSTATEL/CENSEBOARD, P. 0. BOX2WW, SACRAMENTO, CALIFORNIA 95826. W WITNESS WHEREOF, Owner and Contractor have executed this Agreement this 1lSth day of December, 1998. OWNER: American InveshmenU By: to Phew East, LLC CONTRACTOR: Wort sheilman any: Wirt Stwomen OINmW M &" 6 cwt.v_ K lkay 6 �:�,'. :.u_�c. l� .-�t� !.'. .'.��!_-,r'iiF�: r-F,.i+�-:'i�;;=.!1 i:!d��fw=i'Y�i!�.I•!1 ;'r;:ii:= i��,, THE CONTRACT DOCUMENTS A- 1: Geredal Conditions- attached hereto; A-2: Plans and Specifications- attached hereto; A-3: Job Manual- None; A-4: Safety Manual- None; and A-5: lnstructions to Bidders- None. j .. � � i " , . f,�6kj(- '.. -w 1. 1 1, ..j J Yl i')--' "I I � 11*1 .. 1, 1 IL I -, ' SCHEDULE OF VALU&N, See Attached *Wri� twastfil"', cmwmmnAonvww.v Dd&m 0, 2M =CLK&Wl. �;_, Arxess(v�i`R C1�wr�te)Isil�asffrjroiecfsoo��tSailoffttaet�7s�tof'srecartls #�. awi-espandaoca, insf4sraawL% djvwjmga mK*J te, vatrdw4 mvmopaftsndsl7W&rdafs robft fa W* Work draft ressooraim bumew hour$ ALW CmOm9orshopmagme Wamb ranords Pot a pvjiorf offfvs (5; yom afw mmpllmEba of the Work Fvk jrikMMLift. ftlh Owmr and Corr have. YKM the assWmcat ofVwk mpoct m 000t aaf. eahvWy rAgafiWad ft iAnw end pmvisfww awm*ud in Ow C w*md Cocvarwrb. 7'havafafa, owner and Cbnkaaiarma" ft eftat ofCtftrKa Civ.1 Cade §lW4 v►+W kgWp vU rangy In e vol s the po* wFro draRsd ft Mphic : !� fsa8tpstldfopayOwr+ararryauvirr ba �AprsenMe�t ew a�odRipbaAPrraeowinyO.�an.rs/Mtbearettl�e S�ul�eed 1Moivst kale ies deAerd Ar the 6aasrat Goraff�ipa<j front iAo dGie � rva6B psFd O SfX fai A.WRVLy. i ,- i L 1. i1, [buir)cAb sMfrsWV" Ole swiradoa or flirter foa oltf*A i. j W shobs bti up= Co�draeEorwidf�bEvraf(7jaAyEharsundrisD�treedb�'arrYsPP�� �� r*WAW or (>� sudr drta as say eJaloe orac�n J6ral�ic�b Anotailoa � Aa G1abMdJe � and fin�ty , 014 trappaobk any • i � tlraradfcrJudbmwrd p bwald tlMlpfll Is pqb in {rrtl by Carte and owsr aI fty cam fixfawWW pwfy ft twooMnOW fbr aW amouift paid fR ,.. h o tlawebY ve upou ar award theWW br dWkgre of sm* ocf w or a%k% incAa�hpsdu■►aCor�+s)vrt�v P4WwmWWWFAtb*wcondleblv,, :.y, : ivifw , t 101 Jvff NW orshp erg pmvbkm ik flies Cbf*ow Docu oft CO%R>UC70M ARE Rik 9W BY LAW TO BE LCWM AND R8"AL47M 6Y THE CoffMC7VWS'rA76 VANMI /ISJt �wii, ., i . YTORWE31i[;4TEGOAFL4WM A aAAMST CONTRACTV" PA CCAAD"W fS FiLM NiYM Tim YB4R5 Of< TM DATE GF 7l s: .AL EGW1AC"TX2M. gNYQL4 SiMWCCVVCEWONI AGANTRACTORAKYBEfMFAR%EBTDTN$ REMSiis.AR. COtJMC'►ONSSTATE LWm6VFina4M P. O BOX11 M, S WMgUSWfq GV ssm />+E t!Vt37�1lr5S WF�OtF, C�anerand Car�aciorheve AoaQetdeot fAr�t Abr�Nrparitahia 19lA dayralDoae,rnCet, 199�. t "Ml Ad 1r�. l� .. JAW* WN 4 By. yt s"Nomm "i-o'co Pmkd Monger 10.000� 10,000 1�* TrU& ikxp. -1400 @quip. Rent. 1-350 gAV LW permit $ I-4W 1-1462 LEM & Cont, §die&* j-6" To". &qn 5W 5W I-po I-= Temp. T*W TOM of&* Overh d 2000 $ zQW I-M PIWO $ 400 1-700 Tom. Phones i.5001,5W 1-710 Temp. Fax 1-740 Temp. Bea By Owner 1-730 Temp. VvbW ov o"W I -No fooWL. Fence 1,800 I -NO can. Clean UP 3,298 3.M I-= 3.200 $ 3.2W i-M Fafth Clean I-M Emmion Control EW Omer I -�m sbalss Teatinst 1900 swvev I9W WWMWEW"m StIFINW& 4 63298 S S 4,700 4,700 $ W�M I -ow I GomacondNiorm s 6zbW 2-Mb 2-200 Groan 2-30D Dusibl BWV o" 42,500 5 42.5W -2 pwils $-400 5-4W bi6i-m I - 9-jbb &naeft 32.710 i 1 37-710 3-110 skiewsom 1 13,600$ 13.600 -4-M *"?W 0 $ g-idb S" 27.450 0 $ 27AM 83.05 Erm" 83.195 Cabb*b FRP irmdabon SAO $ 5,900 7-300 ToPselt Bue Roo(M as I s - 65,000 a -Am DOOM & Hsrd*we $ $ S-M ."dDom Wkxkms $ b-M *VMS 18,600 $ I8.600 9-W "M '!-leer Lam & ft$W 561000 $ - sewo Vu FWWnq - 9-M P*" 26.300 $ 26,300 %-155 Tout Parts $ - Io-JW Lockers s s 10320 15-031 File Ex. pluff"m 61000 s 5,Wo Air $ - Condensate $ WSW $ 15-450 Spl"bm I 15-500 WAt 3.5W $ 3,500 68,6W 16-020 VWA Kwo $ SUB --TOTAL MM 0 0 452.395 4,7W s 5f 0.353 bOhD!&&URANCE $ - OVERMEADIPM*W 40,828 TOTAL � / Q-1� � k f � '. § \ \� } I 886t'- 1 f7S'09L 3 Nq 03SVc] 1j2IS Ij AllerjuiwU RAUnS Pl-,ICQ j '! MOU)j J,UOP ; DUe ssousinq Atu of jini4 aq p ou j- . -1 ajqaq slie-juose;-4s 9141 jo, Aw I EU014 AIUO 018 SlVaV " P fA Ofew eqj. S4)1)0v-i V .JOB 'AeVI 40 PLW Q41 le asop 1 se'st4uow Alvo si Limon AVv -siois o4i WIjapowei Aavow;o leap JRQUB F, e PUS 'SqUOLU ? 44ods Q,Aeq =4 -,op; 'o" ssou ',c!Pr4 Aw ?J- P%E Q%, Due 6vtpjjnq otA )uoujtjsj n4ei oqj Oluipsetkio i voi ji-S00, ALU 01 61JrIpM LU2 I JfDsse.'C�- JtN Dear Mr. Glasser, I understand that you want to begin the fagade improvement project in these coming weeks. If this is the case, there is no way that I will be able to pay you rent. The parking lot restoration has been such an inconvenience for my customers for the last three months! And now with a proposed project of this magnitude, there will be no way that I will be able to keep my doors open during the beginning, if not all season. Something like this will hurt if not kill, anyone's business. This is why I will greatly appreciate if you could wait to do the facade improvement until next summer. Sincerely, GUILLERMO D. AVALOS The City Of Palm Desert 73-530 Fred Warring Drive Palm Desert, Ca. 92260 Re: The redevelopment of The Palms to Pines Shopping center: 42-820 El Paseo, Please allow the Facade redevelopment to be put off and not stinted Before the end of June 2007. The redevelopment of this will impact Our business. The parking lot was taken out the 1st week of July, 2006 And is still not yet in as of now. October 2006. We The Back Street Bistro Have had to be closed as of the 2°d week in July do to this construction and Still remains closed due to the construction. This has been an exhausting summer. We hope to re open as soon as The parking lot is completed Thank You, LaVane Hause The Back Street Bistro RECEIVED OY i 1 40 ! Palm DeseTtRDA AMERICAN INVESTMENTS/PALMS TO PINES LLC May 10, 2007 Catherine Walker Senior Management Analyst Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, CA 92260-2578 RE: PALMS TO PINES SHOPPING CENTER, FACADE WORKS Dear Ms. Walker, American Investments is writing to officially request for an extension of the commencement date of the facade construction for building #5 at Palms to Pines East. While we recognize that the time for performing under this agreement will expire on 5/15/2007, we are requesting that you extend the time to 6/18/2007 in order for the tenants to honor advance bookings at their restaurants. The construction activates will further disrupt the business activities of our Tenants. Please accept our apology for this inconvenience. We will be looking forward to your response. Best Regards Ame 'can Investor nts/Palms to pines East, LLC Sam Paul Spinello Owner's representative