1996 E.G. Williams Development Corp - Fourth Implementation AgrmtFOURTH IMPLEMENTATION AGREEMENT
by and between the
LA QUINTA REDEVELOPMENT AGENCY
"AGENCY,"
and
E.G. WILLIAMS DEVELOPMENT CORPORATION
"DEVELOPER"
TABLE OF CONTENTS
1.
Certain Definitions..........................................................................................................1
2.
Infrastructure Improvements.........................................................................................2
3.
Infrastructure Improvement Costs.................................................................................3
4.
Infrastructure Improvements Cost Reimbursement.....................................................4
5.
Indemnification...............................................................................................................5
6.
Liens..............................................................................................................................5
7.
Notices.............................................................................................................................5
8.
Applicable Law - Consent to Jurisdiction and Venue
..................................................6
9.
Severability......................................................................................................................6
10.
Further Assurances........................................................................................................6
11.
Successors and Assigns................................................................................................7
12.
Entire Agreement............................................................................................................7
13.
Attornev's Fees...............................................................................................................7
14.
Captions...........................................................................................................................7
15.
Incorporation of Exhibits................................................................................................7
16.
Waiver..............................................................................................................................7
17.
Third Party Beneficiaries................................................................................................7
18.
Time of the Essence.......................................................................................................7
19.
Certain Terms..................................................................................................................7
I
FOURTH
IMPLEMENTATION
AGREEMENT
This Fourth Implementation Agreement ("Agreement") is made as of
, 1996 by and between the La Quinta Redevelopment Agency, a
Public Body Corporate and Politic ("Agency") and E.G. Williams Development Corporation, A
California Corporation, ("Developer").
RECITALS
A. The Developer and Agency are entering into this Agreement pursuant to the
Developer's requirements to fulfill certain development conditions as required in the Disposition
and Development Agreement by and between the Agency and the Developer dated July 5,
1994 ("DDA"), the First Restated and Amended Disposition and Development Agreement by
and between the Agency and the Developer dated September 30, 1994, the Implementation
Agreement by and between the Agency and the Developer dated June 19, 1995, the Second
Implementation Agreement by and between the Agency and the Developer dated July 10, 1995,
the Third Implementation Agreement by and between the Agency and the Developer dated
October 19, 1995, and the First Amendment to the First Restated and Amended Disposition
and Development Agreement by and between the Agency and the Developer dated March 5,
1996.
B. The Agency and Developer, for their mutual benefit, desire that certain additional
roadway and other appurtenant improvements be made as specified in this Agreement that
were not included in the DDA.
C. The purpose for this Agreement includes the following:
(1) To reimburse Developer for certain costs associated with the construction
of these additional improvements.
(2) To fulfill the Agency's obligations pursuant to the Agreement and Escrow
Instructions for Sale and Acquisition of Unimproved Real Property between the Agency and
Desert Sands Unified School District dated October 18, 1994.
Therefore, in consideration of the mutual covenants and conditions set forth in this
Agreement, the parties agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms will have
the indicated meanings:
(a) "Agency": La Quinta Redevelopment Agency, or its assignee.
(b) "City": City of La Quinta, or its assignee.
(c) "Developer": E.G. Williams Development Corporation, a California
Corporation.
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(d) "Improvement Plans": The plans that specifically describe the
Infrastructure Improvements as presented on Exhibit "A" attached hereto.
(e) "Improvement Costs": All direct costs incurred by Developer for the
construction and installation of the Infrastructure Improvements.
(f) "Reimbursements": Payments to Developer from the Agency in
connection with the construction of the Infrastructure Improvements.
(g) "Infrastructure Improvements": Public improvements consisting of
roadway, drainage, and electric power improvements as specifically described on the
Improvement Plans.
2. Infrastructure Improvements. The following Infrastructure Improvements are
the subject of this Agreement and will be constructed by Developer:
(a) Street Improvements. Furnish and install all street improvements and
appurtenant items located on Desert Club Drive west of the centerline in accordance with the
Street Improvements listed on Exhibit "A".
(b) Power Undergrounding Improvements. Furnish and install all power
underground improvements in accordance with the Power Undergrounding Improvements plans
listed on Exhibit "A" and further described as follows:
(i) Furnish and install underground conduit and vaults for electrical
power in accordance with the Power Underground Improvement
plans listed on Exhibit "A" in the right of way adjacent to the
Elementary School site along Springtime Way and Desert Club
Drive between the existing stub -out north of vault UN6250H to
vault UN6390P located west of the school building, including a
street crossing at the Desert Club Drive/Springtime Way
intersection to "loop' the new power circuits to existing vault
UN2389S on the southeast corner, and a stub -out street crossing
extending northwesterly out of vault UN6489V.
NOTE: The conduits that extent northerly to vault UN6551 P, and
vault UN 6551 P are not subject to reimbursement pursuant to this
Agreement as they are considered to be part of the Storm Water
Evacuation System covered by a separate agreement.
(ii) Pay fee to Imperial Irrigation District to have conductors installed
in segments of the new conduit system described in paragraph (i)
above that are subject to reimbursement.
(iii) Furnish and install underground conduit and vaults for electrical
power in accordance with the Power Underground Improvement
plans listed on Exhibit "A" in the Calle Tampico right of way
adjacent to Plaza Tampico between Seasons Way and Desert
Club Drive, as needed and required by Imperial Irrigation District,
to eliminate the overhead power lines strung between poles
918430 and 97473. The work shall also include replacement of all
�aquinMwll liamsl\2rowacc 2 06/14/96
existing improvements damaged during installation of the
underground power structures including but not limited to
sidewalk, landscaping, driveway, curb, gutter, and cross gutter.
NOTE: The balance of the underground power improvements
shown on the plans not required or needed to eliminate the
overhead power lines noted above are not subject to
reimbursement.
(iv) Pay fee to Imperial Irrigation District to have conductors installed
in the segments of the new conduit system described in
paragraph (iii) above.
(c) Storm Water Evacuation Pump Station and Force Main Improvements:
Furnish and install the storm water evacuation pump station and force mains in accordance with
the plans listed on Exhibit A.
(d) Traffic Signal Improvements: Furnish and install a traffic signal at the
Calle Tampico/Desert Club Drive intersection in accordance with the Traffic Signal
Improvements plans listed on Exhibit "A".
3. Infrastructure Improvement Costs.
The DDA provided funds to reimburse the Developer for certain costs associated
with the Infrastructure Improvements. Since the DDA and its subsequent amendments were
adopted, additional infrastructure needs have been identified by the Agency, which resulted in
additional costs that were not funded through the DDA. The Agency, pursuant to this
Agreement, agrees to reimburse the Developer an amount not to exceed Four Hundred
Thousand Five Hundred Fifty -Eight Dollars ($400,558) for the additional costs associated with
the Infrastructure Improvements, allocated as follows:
(i) Street Improvements $154,086
(ii) Power Undergrounding $156,375
(iii) Storm Water Evacuation Pump Station and Force Main $79,274
(iv) Traffic Signal $10,823
Infrastructure Improvement Costs shall include, but are not limited to, all
materials and labor required for the design, survey, engineering, and construction of the
improvements, including any amounts required to be paid for permits, inspection fees, and
other amounts expended in obtaining governmental approvals for such improvements.
4. Infrastructure Improvements Cost Reimbursement. The Developer shall first
seek reimbursement for the portion of Infrastructure Improvements specified in and funded
through the DDA, from the funds on deposit with Developer construction lender, pursuant to
Section 3., Alternative Disbursement Method, contained in Section 331 of the DDA. Once the
funds on deposit with the Developer construction lender have been expended, then the
Developer shall seek reimbursement for eligible Infrastructure Improvement Costs as follows:
(a) Application for Disbursement. On or about the 15th and 30th day of
each month, the Developer shall submit to the Agency an "Application for Disbursement' which
shall include:
la4u,nta�williamss� rowan 3 06/14/96
(i) A written, itemized statement, signed by a representative of the
Developer which sets forth: (1) a description of the work
performed, material supplied and/or costs incurred or due for
which disbursement is requested; and (2) the total amount
incurred, expended and/or due for the requested disbursement.
All moneys applied for and disbursed pursuant to this Section 4
shall be applied only for the Infrastructure Improvements and the
statement(s) by the representative of the Developer shall so
affirm.
Copies of billing invoices, statements, receipts, and other
documents evidencing the total amount expended, incurred, or
due for any requested disbursement.
(III) Mechanics lien waivers including: (1) a Conditional Waiver and
Release Upon Progress Payment (California Civil Code Section
3262(d)(1)) for itself and each contractor covered by such
Request Payment, (2) an Unconditional Waiver and Release
Upon Progress Payment (California Civil Code Section
3262(d)(2)) for itself and each of its contractors covering the full
amount of all previous payments made to Developer, and (3) an
Unconditional Waiver and Release Upon Final Payment
(California Civil Code Section 3262(d)(4)) for its contractors who
have competed their work and for whom Developer has received
full payment.
(iv) The contractor shall not knowingly pay less than the general
prevailing rate for per diem wages, as determined by the State of
California Department of Industrial Relations and referred to in the
Invitation to Bid, to any workman employed for the work to be
performed under this contract; and the Contractor shall forfeit as a
penalty to the City the sum of Twenty -Five Dollars ($25.00) for
each calendar day, or fraction thereof, for such workman paid by
him or by any subcontractor under him in violation of this provision
(Section 1770-1777, Labor Code of California).
(V) A statement by the City Engineer or his designee that the
percentage and/or stage of construction has been substantially
completed and substantially conforms to the plans based upon
such engineer's inspections of the respective Infrastructure
Improvements.
(vi) An engineer's certificate of substantial completion, prior to the
final disbursements.
(vii) Certification that in completing construction, the Developer has
complied with all applicable laws.
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Each Application for Disbursement by the Developer shall constitute a
representation and warranty by the Developer that all work encompassed by the Application for
Disbursement has been accomplished in accordance with City standards for such work and
sound construction practices, and that the Developer is in compliance with all of the provisions
of this Agreement.
(b) Approval and Payment. Upon receipt of the Application for
Disbursement, the Agency shall review the same and shall approve the same subject to such
exceptions as the Agency deems reasonably necessary and appropriate under the then current
circumstances. Such approval may not unreasonably be withheld or delayed. The Agency
shall pay, or cause to be paid, any approved disbursements within thirty (30) days following the
Agency's receipt of the corresponding Application for Disbursement.
5. Indemnification. Developer shall save, protect, defend, indemnify, and hold
harmless the Agency and the City from and against any and all liabilities, suits, actions, claims,
demands, penalties, damages (including, without limitation, penalties, fines, and monetary
sanctions), losses, costs, or expenses (including, without limitation, consultants' fees,
investigation and laboratory fees, reasonable attorneys' fees, and remedial and response costs)
(the foregoing are hereinafter collectively referred to as "Liabilities') which may now or in the
future be incurred or suffered by Agency and City by reason of, resulting from, in connection
with, or arising in any manner whatsoever as a direct or indirect result of (i) any act or omission
on the part of Developer, or their agents, employees, contractors, or invitees, (ii) the presence
on or under, or the escape, seepage, leakage, spillage, discharge, emission, or release from
the site of any Hazardous Materials or Hazardous Materials Contamination, (iii) the
environmental condition of the site, and (iv) any Liabilities incurred under any Governmental
Requirements relating to Hazardous Materials. Developer's obligations under this Agreement
shall survive the completion of the Improvements and the issuance by the City of a Notice of
Acceptance.
6. Liens. Developer shall not cause any mechanic's liens, claims arising out of
furnishing of materials, performance of work on the Infrastructure Improvements, or cloud on
title to be imposed on the Infrastructure Improvements. If any such lien is created or imposed
on the Infrastructure Improvements, Developer will immediately cause same to be removed and
shall indemnify the Agency and City from any loss, cost, or damage therefrom.
7. Notices. Any notice, request, demand, consent, approval, or other
communication required or permitted hereunder or by law shall be validly given or made only if
in writing and delivered in person to an officer or duly authorized representative of the other
party, or seventy-two (72) hours after deposited in the United States mail, duly certified or
registered (return receipt requested), postage prepaid, and addressed to the party for whom
intended, as follows:
To Agency: Executive Director
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92253
(619) 777-7100
FAX - (619) 777-7101
ln4uinta\w,lieins\Urowa c 5 06/14/96
To Developer: E.G. Williams Development Corporation
42-600 Caroline Court, Suite 101
Palm Desert, California 92211-5144
(619) 341-6880
FAX (619) 341-6867
Copy to: Dawn Honeywell, Esq.
P.O. Box 2095
Orange, California 92669
(800) 350-6812
FAX (714) 771-1109
and
Copy to: Rosenow Spevacek Group, Inc.
540 North Golden Circle, Suite 305
Santa Ana, California, 92705
Attention: John N. Yonai
(714) 541-4585
FAX - (714) 836-1748
Any party may from time to time, by written notice to the other, designate a different
address which shall be substituted for that specified above. If any notice or other document is
sent by mail as aforesaid, the same shall be deemed fully delivered and received forty-eight
(48) hours after mailing as provided above.
8. Applicable Law - Consent to Jurisdiction and Venue. This Agreement shall in
all respects be governed by the laws of the State of California which are applicable to
agreements executed and to be fully performed therein. The parties further agree that all
actions or proceedings arising in connection with this Agreement shall be litigated exclusively
either in the State or the Federal Courts, as appropriate, located in the County of Riverside,
State of California, which courts shall have personal jurisdiction over the parties hereto.
9. Severability. No term, condition, or provision of this Agreement shall be
interpreted or construed to require the performance of any act, duty, or obligation that is
contrary to law. If any term, condition or provision of this Agreement is determined to be illegal,
unenforceable, or invalid on whole or in part for any reason, such provision shall be stricken
from this Agreement to the limited extent necessary to bring this Agreement within the
requirements of the law and this Agreement to the fullest extent practical shall otherwise be
deemed legal and valid and shall continue in full force and effect.
10. Further Assurances. Each of the parties hereto shall execute and deliver any
and all additional papers, documents, and other assurances, and shall do any and all acts and
things reasonably necessary in connection with the performance of their respective obligations
hereunder and to carry out the intent of the parties hereto.
11. Successors and Assigns. All of the terms and provisions contained herein shall
inure to the benefit of and shall be binding upon the parties hereto and their respective heirs,
personal representatives, successors and assigns.
iamh,a\wi11n 2towaoa 6 06/14/96
12. Entire Agreement. This Agreement with attachments constitutes the entire
understanding and agreement of the parties with respect to the specific terms herein. All other
terms of the First Amendment to the First Restated and Amended Disposition and Development
Agreement and prior Implementation Agreements, and shall remain in full force and effect.
13. Attorney's Fees. In the event any action of any type, including, but not limited
to, suit, collection, counterclaim, appeal, arbitration, mediation, and/or alternative dispute
resolution as provided herein, is instituted or brought by a party to enforce any of the terms and
provisions hereto and/or to obtain a declamatory judgment with respect to the status of his, her,
or its rights hereunder (collectively an "Action" herein), the losing party shall pay the prevailing
party all costs, expenses, and fees whatsoever incurred by the prevailing party with respect to
bringing and prosecuting such Action and enforcing any judgment, order, ruling, or award
granted thereunder, including reasonable attorneys' fees, accounting fees, and court costs as
the Court may award.
14. Captions. The captions appearing at the commencement of the paragraphs
hereof are descriptive only and for convenience in reference. Should there be any conflict
between any such caption and the paragraph at the head of which it appears, the paragraph
and not such caption shall control and govern in the construction of this Agreement.
15. Incorporation of Exhibits. All exhibits attached hereto and referred to herein are
incorporated into this Agreement as though fully set forth in the body hereof.
16. Waiver. No consent to any action, waiver of any provision, or waiver of any
breach of any duty or obligation hereunder shall constitute a waiver of any other provision or
consent to any other action or subsequent breach, whether or not similar. No waiver or consent
shall constitute a continuing waiver or consent or commit a party to provide a waiver in the
future except to the extent specifically set forth in writing. Any waiver given by a party shall be
null and void if the party requesting such waiver has not provided to the waiving party a full and
complete disclosure of all material facts relevant to the waiver requested.
17. Third Party Beneficiaries. This Agreement, and every provision herein, is made
exclusively for the benefit of the parties hereto and their respective successors and permitted
assigns. Nothing in this Agreement is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties to it and their respective
successors and permitted assigns; provided, however, nothing in this Agreement is intended to
relieve or discharge the obligation or liability of any third person to any part to this Agreement.
18. Time of the Essence. Time is of the essence with respect to the performance
of all the duties and obligations set forth in this Agreement.
19. Certain Terms. The terms "shall" and "will" are used interchangeably and have
the same mandatory meaning.
IN WITNESS WHEREOF, the Agency and the Developer have signed this Agreement
on the respective dates set forth below.
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EXHIBIT "A"
There are four (4) sets of plans incorporated by reference into the Implementation Agreement
that specifically describe the Infrastructure Improvements to be developed as listed in Section 2
of the Agreement; the four (4) plan sets are:
1. Street Improvements: The set of plans that describe these improvements consists of
four (4) sheets and is entitled "Tract 28019, Off -Site Street Plans". These plans were
prepared by Sanborn/Webb, Inc. and approved by the City Engineer on 2/28/96.
2. Power Undergrounding Improvements: The plans for these improvements are
described on two (2) sets of plans entitled: 1) La Quinta Elementary School, Project
#K-9772 consisting of three (3) sheets as approved by Imperial Irrigation District on
11/7/95, and 2) The Seasons Villas, Project #K-8849 consisting of four (4) sheets as
approved by Imperial Irrigation District on 2/24/95.
3. Storm Water Evacuation Pump Station and Force Main Improvements: The set of
plans that describe these improvements consists of four (4) sheets and is entitled "Tract
28019, Desert Club Drive Pump Station". These plans were prepared by
Sanborn/Webb, Inc., and will be approved by the City Engineer within the next thirty (30)
days.
4. Traffic Signal Improvements: The set of plans that describe these improvements
consists of one (1) sheet and is entitled "Traffic Signal Plan, Calle Tampico and Desert
Club Drive". These plans were prepared by Hall & Foreman, Inc. and approved by the
City Engineer on 3/27/96.
06/18/1996 15:55 6197777155
CITY OF LA QUINTA PAGE 11
APPROVED AS TO FORM:
DAWN HONEYWELL, Agency Counsel
LA QUINTA REDEVELOPMENT AGENCY
"Agency"
E.G. WILLIAMS DEVELOPMENT
CORPORATION, a California corporation
"Developer"
By
IrA.&WAF .nm. tS 06 Q96