East of Madison LLC/Ave 52 Median 07
...
CITY OF LA QUINTA
REIMBURSEMENT AGREEMENT
TRACT MAP No. 33076 - 1
STREET AND RAISED LANDSCAPE MEDIAN IMPROVEMENTS TO AVENUE 52
(MADISON STREET TO 1/2 MILE EAST OF MADISON STREET)
THIS REIMBURSEMENT AGREEMENT (the "Agreement") is made and entered into this
"liP day of 7)PAtf!//}.I7f?Y ,2007, by and between East of Madison.
LLC, a Delaware limited partnership, hereinafter referred to as "Developer," and the City of La
Quinta, California, a California Municipal Corporation (the "City").
RECITALS:
A. Developer is the subdivider and developer of property in the City of La Quinta{"Tract")
subject to the provisions of Tract 33076-1 (the "Tract"), which area is currently known as
Madison Club and which lies south of Avenue 52 and north of Avenue 54 between Madison
Street and Monroe Street in the City of La Quinta.
B. Conditions of Approval for Tract Map No. 33076 (attached to the Plan as Exhibit B)
adopted by the City Council on February 1, 2005, obligate Developer to construct the south
half of the street and half width of the landscaped median improvements to the portion of
Avenue 52 lying adjacent to the tract (the "Required Improvements").
C. Pursuant to the City Development Impact Fee Program ("Program"), adopted June 15,
1999 and revised July 5, 2006, the Developer is required to pay Development Impact Fees
("Fees") to fund these and other improvements as the Development is constructed. Said Fees
include a Transportation Improvement Fee component ("Transportation Fee") that funds
regional serving transportation improvements.
D. Pursuant to Section 10, Implementation, B. Administration, of the Program, if the City
requires a developer, as a condition of project approval, to construct facilities or improvements
for which impact fees have been, or will be, charged to that project, the impact fee imposed
on that development project for that type of facility should be adjusted to reflect a credit for
the cost of those facilities or improvements.
NOW, THEREFORE, it is agreed by and between the parties hereto as follows:
1. Responsibilities of Developer. Developer shall construct the Required Improvements
defined in Exhibit A attached hereto and incorporated herein by this reference and will bear the
cost thereof even if the actual costs of constructing the Required Improvements exceeds the
Budget Amount as shown on Exhibit A ("Budget Amount"). Upon receipt of an executed DIF
Reimbursement Agreement and acceptance of the improvements by the City, the Developer
shall submit invoices and supporting documentation for those eligible costs per Exhibit A.
Reimbursement Agreement - C5-Avenue52 DIFagreemt Madison Club
Page 1 of 6
.'
2. Responsibilities of Citv.
(a) Approval or Disapproval of Expenses. The City Engineer shall either approve or
disapprove the invoices and submit the approved invoices for credit andlor reimbursement in
accordance with this Agreement. The City Engineer shall provide Developer with a written
explanation for any portion of an invoice that is disapproved. Developer recognizes that the
City Engineer's approval of the costs does not guarantee that the costs will be reimbursed.
Instead, the City Engineer approval is a condition precedent necessary for the costs to be
processed for credit or reimbursement.
(b) Issuance of Credit. Upon the completion of the Required Improvements, and approval
of costs by the City Engineer, the City will issue a credit for eligible costs to Developer or
Developer's successor in interest which credit can be applied against the Transportation
Component of the DIF fees otherwise due and payable for building permits within the Project.
(c) Additional Reimbursement from the City's Future Transportation Component Fees. To
the extent that Developer's eligible costs for the Required Improvements are not credited or
reimbursed pursuant to Section 2(b), Developer is eligible for reimbursement at some point in
the future from the Transportation Component Fees collected on other projects. Developer
recognizes that at this point in time, the City cannot commit to a time certain for
reimbursement, in as much as the City is entitled to establish the priority of spending for the
Transportation Component Fees. Developer further recognizes that the City Council has
indicated that it will be considering a policy regarding the priority of reimbursement, and that if
adopted, the timing of its reimbursement will be subject to the policy. In no event will the
amount of reimbursement exceed the amount designated in the DIF Program for the portion or
percentage of roadway improvements comprising the Required Improvement.
3. Amount of Reimbursement. Subject to the limitation in Section 2, reimbursement shall
be for actual costs incurred by Developer for items eligible for reimbursement and for any
additional items required in the course of construction of the Required Improvements and
agreed to in writing by the parties hereto. The Developer shall not be reimbursed beyond the
Budget Amount.
4. Warrantv. Developer agrees to obtain from the contractor(s) constructing the Required
Improvements a warranty in favor of the City to repair or replace of faulty work or materials for
a period of one year following the date that the Required Improvements are accepted by the
City Council.
5. Disputes. In the event of any dispute arising under this Agreement, the injured party
shall notify the injuring party of its contentions by submitting a claim therefore. The injured
party shall continue performing its obligations incurred herein so long as the injuring party
commences to cure such injuring action within ten (10) days of service of such notice and
completes the cure within forty-five (45) days after the notification, or such longer period as
may be agreed upon by both parties to this Agreement.
Reimbursement Agreement - C5-Avenue52 DIFagreemt Madison Club
Page 2 of 6
6. Attornev's Fees. If either party commences an action against the other arising out of or
in connection with this Agreement, including the filing of a lien or other legal action to compel
payment of the Reimbursement, the prevailing party shall be entitled to recover reasonable
attorney's fees and legal costs from the losing party.
7. Indemnification. Developer shall defend, indemnify and hold harmless City, its
officers, employees, representatives and agents ("Indemnified Parties"), from and againstthose
actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal
costs and attorneys' fees, arising out of any liability or claim for liability, for injury to or death
of person{s), for damage to property (including property owned by City) and for errors and
omissions committed by Developer, its officers, employees representatives, and agents, which
arise out of acts or activities of Developer's or Developer's Officers, employees, agents or
representatives ("Claims"), whether or not such act or activity is authorized by this Agreement,
except to the extent of such loss as may be caused by City's own negligence or that of its
officers or employees. In the event the Indemnified Parties are made a party to any action,
lawsuit, or other adversarial proceeding in any way involving such Claims, Developer shall
provide a defense to the Indemnified Parties, or at the City's option, reimburse the Indemnified
Parties their costs of defense, including reasonable attorneys' fees, incurred in defense of such
Claims. In addition, Developer shall be obligated to promptly pay any final judgment or portion
thereof rendered against the Indemnified Parities.
8. Citv Officers and Emplovees: Non-Discrimination. No officer or employee of City shall
be personally liable to Developer or any successor in interest in the event of any default or
breach by City or for any amount which may become due to Developer or to its successor or
for breach of any obligation of the terms of this Agreement.
9. Term of Aareement. This Agreement shall remain in full force and in effect until each
party has fully performed its obligations and all required reimbursements have been issued.
10. Notice. Any notice, demand, request, consent, approval, or communication either party
desires or is required to give to the other party or any person shall be in writing and either
served personally or sent by prepaid, first-class mail to the address set forth below. Notice
shall be deemed communicated forty-eight (48) hours from the time of mailing if mailed as
provided in this Section.
To City:
City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
760/777-7075
Attn: City Engineer
To Developer:
East of Madison, LLC
80-955 Avenue 52
ReImbursement Agreement - C5-Avenue52 DIFagreernt Madison Club
Page 3 of 6
"
La Quinta, California 92253
Attn: Cindy Zamorez
760/393-5288
11 . Assignment of Aareement. The Developer may not assign, sublet, hypothecate,
encumber, or transfer (whether voluntarily or involuntarily) its obligations hereunder to any party
without the prior written consent of the City, which consent may be withheld in the City's sole and
absolute discretion,
12. General Provisions.
A. Except as otherwise provided herein, the terms, conditions, covenants, and
agreements set forth herein shall apply to and bind the heirs, executors, administrators,
assigns, and successors of the parties hereto.
B. Neither party to this Agreement relies upon any warranty or representation not
contained in this Agreement.
C. This Agreement shall be governed by and interpreted with respect to the laws of the
State of California.
D. Any failure or delay by either party in asserting any of its rights and remedies as to
any default shall not operate as a waiver of any default or of any rights or remedies provided
for herei n.
E. This Agreement may be amended at any time by the mutual consent of the parties
by an instrument in writing signed by both parties.
F. This Agreement may be executed in counterparts, which when taken together, shall
constitute one fully executed document.
13. Severabilitv. In the event that any provision or provisions of this Agreement are held
unenforceable, all provisions not so held shall remain in full force and effect.
14. Authoritv of Sianatories. The persons executing this Agreement on behalf of the
parties hereto warrant that they are duly authorized to execute this Agreement on behalf of
said parties and that by so executing this Agreement the parties are formally bound to the
provisions of this Agreement.
* * * * *
Reimbursement Agreement - C5.Avenue52 DIFagreemt Madison Club
Page 4 of 6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
year first written above.
CITY OF LA QUINTA:
~,_/~
Thomas P. Genovese, City Manager
/o/~/
Date
ATTEST:
~
eronica Mo
Approved as to Form:
Date
Date
Developer:
East of Madison, LLC
80-995 Avenue 52
La Quinta, California 92253
By: (\000
~li~2~
Title: DatRe",;o.r Viet f(~;de"t. ~r J. MedJov< I LLc.
By:
Date
Title:
Reimbursement Agreement - C5.Avenue52 DIFagreemt Madison Club
Page 5 of 6
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
State of California
R 1';e("oS ;de..
} ss.
County of
On "J"u./ 'I .;),6,:fJO()'7
personally appeared
before me, -KafJ...~::1'~dT~;l!~~ ~~,r~ Ie..,
~hn Gum/IN ,
Name{s}of Srgner(s)
D personally known to me
/f( proved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) is/.....
subscribed to the within instrument and
acknowledged to me that he/shQ/tl'l<oy executed
the same in his/~/thllir authorized
capacity(ies), and that by his/h~thlljr
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
~_"A"f" c:L ,vlcA.T-h>-
Signature of Nolllry PubllC
OPTIONAL
Though the information below is not required by law, It may prove valuable to persons relymg on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
C.ok. ~ Ui.Q,.,,;
Title or fIope of Documen .
Document Date:
+
J"u...t~ ;;1.) ;;}007
Signer(s) Other Than Named Above:
Capacity{ies) Claimed by Signer
Signer's Name:
.
Top of thumb here
D Individual
D Corporate Officer - Title(s):
D Partner - D Limited D General
D Attorney-in-Fact
D Trustee
D Guardian or Conservator
D Other:
Signer Is Representing:
@1999NatlooaINotaryASSOCIaMn'935ODeSOIoAve,PO Box 2402' Chalsworth, CA91313-2402' wwwnallonalnotaryorg
Prod No 5907
Reorder Call Toll-Free 1-800-878-6827
Exhibit A
REQUIRED IMPROVEMENTS -TRACT No. 33076 - 1 [DELETE INITIAL CAPS]
Item # Description Units Unit Cost Quantitv Total Cost
AVENUE 52 STREET AND MEDIAN
IMPROVEMENTS MADISON STREET
TO 1/2 MILE EAST OF MADISON STREET
DIF ELIGIBLE REIMBURSEMENT
1 One Lane (INSIDE LANE) L.S. $191,520 1 $191,520.00
Street Improvements (not to exceed)
(South Side) - Required
Off-Site Street Improvements
Eligible for Reimbursements
From Development Impact
Fee Fund
2 Y:. of Landscape Median L.S. $478,400 1 $478,400.00
Improvements (South Side) (not to exceed)
- Required Off-Site Street
Improvements Eligible for
Reimbursements From
Development Impact Fee
Fund
Total Cost for Required Improvements, not to exceed:
$669,920.00
Reimbursement Agreement -C5.Avenue52 DIFagreemt Madison Club
Page 6 of 6
~ of 4QulJtrw
MEMORANDUM
TO:
Veronica Montecino, City Clerk
~imothY Jonasson, Public Works Director/City Engineer
FROM:
DATE:
November 20, 2007
SUBJECT: Avenue 52 DIF Reimbursement Agreement -
East of Madison, LLC
On July 3, 2007, the City Council approved the DIF Agreement between
East of Madison, LLC for Street and Raised Landscape Median Improvements
between Madison Street and a Half Mile East of Madison Street.
Attached for your execution and recordation are two (2) original DIF
Reimbursement Agreements which have been signed and returned from East
of Madison, LLC. Once completed, please forward a copy for our files and
one (1) original DIF Reimbursement Agreement to East of Madison, LLC for
their files.
If you have any questions, please contact Brian Ching, Associate Engineer at
ext. 7044.
.T:\Development Services Division\Development Projects\Agreements\DIF and Custom
Agreements\Reimbursement-DIF\Madison Club Ave 52\ 11-20-07City Clerk - Madison Club DIF Agreement.doc