Coral Canyon & Ministrelli Dev/Jefferson Street 09AGREEMENT REGARDING RESPECTIVE DUTIES UNDER BUREAU OF
RECLAMATION JEFFERSON STREET LICENSE
THIS AGREEMENT REGARDING RESPECTIVE DUTIES UNDER BUREAU
OF RECLAMATION JEFFERSON STREEToLNSE (the "Agreement") is made and
entered into this 12t" day of February, 20 by and between Coral Canyon, LLC, a
Delaware Limited Liability Company ("Developer"), Ministrelli Development, Inc., a
California Corporation ("Guarantor"), and the City of La Quinta, a California Municipal
Corporation (the "City").
RECITALS
A. Developer is the subdivider and developer of Tentative Map No. 33444 (the
"Project") located in the City of La Quinta subject to the conditions of approval
found in City Council Resolution 2005-082 ("Conditions of Approval").
B. The Conditions of Approval obligate Developer to construct certain improvements
on Jefferson Street, generally described as follows, and more specifically
described in the Conditions of Approval, #62, A 2) & A 3) as follows: (a) realign
and widen Jefferson Street from its northerly terminus on Avenue 58 to Cahuilla
Park Road, (b) realign and widen Jefferson Street from Cahuilla Park Road to the
northerly boundary of Tentative Map No. 33444, herein referred to as (the
"Required Improvements"). Developer is proposing to initially construct Interim
Improvements which do not include the outer two lanes along Jefferson Street.
The City in the future will be considering a General Plan amendment relating to
Jefferson Street, which if approved, could render the Interim Improvements as
the ultimate roadway improvements in this area. If the City Council approves
such a General Plan Amendment in the future, the reference to the "Required
Improvements" in this Agreement shall mean the Interim Improvements, provided
that such improvements are approved by the Public Works Director and accepted
by the City Council.
C. Guarantor is a California corporation which owns an interest in Developer.
Guarantor has agreed to guarantee the performance of Developer's obligation in
this Agreement.
D. Developer has coordinated an application to the Department of Interior, Bureau
of Reclamation ("BOR") to obtain a license over the necessary right-of-way for
the portion of the Required Improvements which cross over the All American
Canal Project, portions of Sections 28 and 29, T.6S., R. 7 E., San Bernardino
Meridian, California.
E. As a result of Developer's efforts, the BOR has transmitted to the City a
proposed Contract and License No. 06-07-34-1-1502, a true and correct copy of
which is attached hereto as Exhibit A ("BOR License Agreement"), and which is
incorporated herein by this reference.
F. In the normal course of subdivision development, the City does not accept off -
site improvements or the right of way they are built upon until the improvements
are completed to the satisfaction of the Director of Public Works and formally
accepted by the City Council.
G. Developer has requested that the City execute the BOR License Agreement in
advance of the construction of the improvements, thereby necessitating this
Agreement.
AGREEMENT
NOW, THEREFORE, it is agreed by and between the parties hereto as follows:
1. Responsibilities of Developer: During the term of this Agreement, Developer shall
perform all of the obligations identified as being the obligation of the Licensee in
the BOR License Agreement. These include, but are not limited to, making all
required payments to the BOR, the construction of the Required Improvements,
and indemnification of the United States and the BOR in accordance with Section 7
of the BOR License Agreement, all of the Miscellaneous Conditions specified in
Section 9 of the BOR License Agreement, the requirements regarding discovery of
Cultural Resources in Section 12 of the BOR License Agreement, the requirements
and obligations relating to Hazardous Materials in Section 13 of the BOR License
Agreement, and the compliance with all of the clean air and clean water regulations
contained in Section 14 of the BOR License Agreement. Developer shall further be
responsible for any other costs, expenses, and actions necessary to implement the
BOR License, which implementation is to be at no expense to the City. The
assumption of obligation by the Developer in this Section shall be without prejudice
to its right to seek reimbursement from the City under the Developer Impact Fee
program and to any rights to reimbursement Developer obtains by way of any
reimbursement agreement executed between the City and Developer.
2. Responsibilities of Guarantor: As a material inducement to the City to execute the
BOR License Agreement, Guarantor has agreed to be responsible for the
obligations and duties of Developer to the extent the developer fails to or is
otherwise unable to perform as required by this Agreement.
3. Responsibility of City: The City's obligation shall be: (1) to approve and execute
the BOR License Agreement; (2) to accept the Required Improvements once they
are completed in accordance with the approved Improvement Plans and provided
they meet the approval of the Director of Public Works; (3) to undertake the normal
maintenance of the Required Improvements once accepted; (4) upon the formal
acceptance by the City Council of the Required Improvement, assume the
obligations of the Licensee in the BOR License Agreement except as otherwise
specified herein; and (5) to apply for the 50-year extension referred to in Section
4(a) of the BOR License Agreement. The City shall have no obligation to replace
the Requirement Improvements unless it deems it appropriate to do so in its
absolute and sole discretion.
4. 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 therefor.
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 necessary or agreed upon by all
parties to this Agreement.
5. Attorneys' Fees. If any party commences an action against the other arising out of
or in connection with this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and legal costs from the losing party related to
enforcement of the provisions of this Agreement.
6. Indemnification. Developer agrees to indemnify, defend, and hold City and its
officers, employees, agents, representatives, and assigns ("Indemnified Parties")
harmless from and against any losses, claims, demands, actions, or causes of
action ("Claims"), of any nature whatsoever, arising out of or in any way connected
with the performance of Developer, its officers, employees, agents, or
representatives .under this Agreement, including costs of suit and reasonable
attorneys' fees. 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 claim. In addition,
Developer shall be obligated to promptly pay any final judgment or portion thereof
rendered against the Indemnified Parties. The duty of Developer to defend,
indemnify and hold the Indemnified Parties harmless shall not extend to Claims
arising from the active negligence or willful misconduct of the City Indemnitees.
7. City Officers and Employees. 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.
8. Term of Agreement. This Agreement shall remain in full force and effect following
the date it has been executed by both parties, until the City Council has formally
accepted the Required Improvements pursuant to Paragraph 3 herein. With
respect to Developer's and Guarantor's obligations under Paragraph 6, the
obligation to provide indemnification for any Claims based upon any act or
omission that occurred prior to the City Council's formal acceptance of the
Required Improvement, those obligations shall survive until fully performed.
9. Insurance. Developer shall concurrently with the execution of this Agreement,
furnish the City satisfactory evidence of insurance of the kinds and in the amounts
specified below. This insurance shall be kept in full force and effect by Developer
during the term of this Agreement and all premiums thereon shall be promptly paid
by it. Each policy shall further state that it cannot be canceled without 30 days
unconditional written notice to the City and shall name the City as an additional
insured. Developer shall furnish evidence of having in effect, and shall maintain,
Workers Compensation Insurance coverage of not less than the statutory amount
or otherwise show a certificate of self-insurance, in accordance with the Workers
Compensation laws of the State of California. Failure to maintain the required
amounts and types of coverage throughout the duration of this Contract shall
constitute a material breach of this Contract.
a. Commercial General Liability Policy
The Contractor shall take out and maintain during the term of this
Agreement, a Commercial General Liability Policy, on an occurrence basis,
with a minimum limit of not less than One Million Dollars ($1,000,000)
combined single limit for bodily injury and property damage for any one
occurrence and a Two Million Dollar ($2,000,000) annual project aggregate,
for all of the following:
i) Premises Operations, including Explosion, Collapse and Underground (X,
C, and U) Coverage.
ii) Completed Operations/Products, including X, C, and U Coverage.
iii) Independent Contractors.
iv) Blanket Contractual.
v) Deductible shall not exceed One Thousand Dollars ($1,000).
b. Commercial Business Auto Policy
The Contractor shall take out and maintain during the term of this
Agreement, a Commercial Business Auto Policy, on an occurrence basis,
with a minimum amount of not less than One Million Dollars ($1,000,000)
combined single limit for bodily injury and property damage, providing at
least all of the following coverage:
i) Coverage shall be applicable to any and all leased, owned, hired, or non -
owned vehicles used in pursuit of any of the activities associated with
this Contract.
ii) Any and all mobile equipment, including cranes, which is not covered
under said Commercial Business Auto Policy, shall have said coverage
provided for under the Commercial General Liability Policy.
iii) Deductible shall not exceed One Thousand Dollars ($1,000).
10. Notice. Any notice, demand, request, consent, approval, or communication either
parry 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, California 92253
Attn: City Engineer
(760)777-7075
To Developer and: Coral Canyon, LLC
And Guarantor 74135 Highway 111, Suite 105
Indian Wells, CA 92210
Attn: Pat Hall
(760) 771-1941
With Copy To: Wayne Guralnick, Esq.
Guralnick &Gilliland, LLP
74-399 Highway 111, Suite M
Palm Desert, CA 92201
(760) 340-1515
11. Assignment of Agreement. Neither party may assign its obligations hereunder to
any assignee without the knowledge and with written consent of the other party
hereto which other party shall not unreasonably withhold consent. Assignment
may be made only to an assignee willing, financially capable, and competent to
carry out the assignor's obligations.
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 herein.
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. 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.
G. 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.
13. Condition Precedent. This Agreement shall become effective only if the BOR
License Agreement is fully executed.
14. Disclosure of Limited Duration of BOR License. The BOR License Agreement
provides in Section 4 that its initial term is for 50 years, and that an additional term may
be granted upon application and agreement of the parties thereto. The BOR License
Agreement further provides that any further extension will be treated as a new
application. Developer agrees to ensure that all lot purchasers shall be informed of the
limitation on the duration of the license by way of a recorded notice in a form acceptable
to the City Attorney and the Director of Public Works. A pre -approved form is attached
hereto as Exhibit B. The parties may amend the form if the changes are mutually
agreed upon. Developer agrees that the City will not approve the recordation of the
Final Map for Tract No. 33444 until and unless the approved notice to all lot purchasers
is recorded simultaneously.
[SIGNATURES ON FOLLOWING PAGE]
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
Date
I_1
Veronica Montecino, City Clerk
City of La Quinta
31 o/o 9
Date
CORAL CANYON, LLC
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By1
Famtwq 1 2
Date
Title: A4Aw,+6E2
M nistrelli Development, Inc.
Date
Title:
Approved as to Form:
M n ' en on, ity Attorney
of La Quinta
3 0
Date
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
Date
ATTEST:
Veronica Montecino, City Clerk
City of La Quinta
Approved as to Form:
M. Katherine Jenson, City Attorney
City of La Quinta
Date Date
CORAL CANYON, LLC
By:
Date
Title:
Ministrelt' elo ment, Inc
D�t'e� '
Title:
MINISTRELLI DEVELOPMENT, INC.
A California Corporation
Resolution by Unanimous Written Consent
of Board of Directors
WHEREAS, Ministrelli Development, Inc., a California Corporation, (hereinafter
"Corporation") develops real property in Riverside County, California;
WHEREAS, J. Peter Ministrelli is the sole shareholder and director for the Corporation;
WHEREAS, J. Peter Ministrelli is often out of Riverside County and occasions occur
wherein urgent, required and/or necessary corporate documentation and contracts must be
executed while Mr. Ministrelli is out of Riverside County. To ease such urgent, essential and/or
necessary execution requests, the Board of Directors wishes to authorize a Corporate Officer to
execute any and all urgent, required and/or necessary documentation required on behalf of
Corporation provided certain criteria are met; and
WHEREAS, California Corporations Code § 7211(b) also states that if such an action is
taken without a meeting: The written consent or consents shall be filed with the minutes of the
proceedings of the board. The action by written consent shall have the same force and effect as
a unanimous vote of the directors.."; and
NOW, THEREFORE, BE IT RESOLVED that Patricia Matheny, Vice President of the
Corporation, shall have the authority to execute any and all urgent, required and/or necessary
documentation required on behalf of Corporation while J. Peter Ministrelli is absentfrom Riverside
County; and
BE IT RESOLVED that upon unanimous written consent by the Board of Directors of this
Resolution, the action outlined above shall be taken and shall become effective upon execution
of same by all Board members; and
RESOLVED AND ADOPTED by the unanimous ratification of the Board of Directors of
MINISTRELLI DEVELOPMENT, INC. as indicated by the signature below.
Date: d By: �� /ii .�.�.✓L /� L�f��
J. Peter Ministrelli, Director
Exhibit A
Bureau of Reclamation Contract and License Agreement
Exhibit B
Pre -Approved Form of Disclosure and Waiver
RECORDING REQUESTED BY
AND WHEN MAILED TO:
City Clerk
City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
DECLARATION OF COVENANT AND AGREEMENT REGARDING
WAIVER OF CLAIMS AGAINST CITY OF LA QUINTA
This DECLARATION OF COVENANT AND AGREEMENT REGARDING
WAIVER OF CLAIMS AGAINST CITY OF LA QUINTA ("Covenant') is made this
day of by ("Declarant') with respect to certain
real property, title to which is held by Declarant, consisting of
(the "Subject Property").
Declarant agrees and acknowledges that it has been advised of and is fully
aware of the risks and potential liability relating to the following conditions of the Subject
Property:
In order to access the Subject Property by roadway, it is necessary to
pass over property owned by the Bureau of Reclamation ("BOR"), a
federal agency. Declarant proposed to access the Subject Property
by Jefferson Street. This may be the only other roadway leading to
the Subject Property. To the extent there are other roadways leading
to the Subject Property, said roadways will also have to pass over
BOR property. A portion of the Jefferson Street is located on BOR
property. The BOR had refused to grant the City of La Quinta a fee
interest or an easement for the roadway. The City of La Quinta has
no power to acquire the BOR property by eminent domain. In order to
build the roadway on portions of BOR land, the BOR and the City of
La Quinta have entered into a license agreement ("License
Agreement"). A copy of the License Agreement is attached hereto as
Exhibit A and incorporated herein by this reference. The License
Agreement will expire, by its own terms, in the year 2058, unless the
City of La Quinta makes a written request for an extension of the
License Agreement and BOR approves same. Additionally, the
License Agreement contains a provision which allows BOR to
terminate the License Agreement, at any time, under certain
conditions, as contained within the License Agreement. If the License
Agreement is terminated by the BOR, or if the License Agreement is
not extended on or before the year 2058, street access to the Subject
Property would be eliminated unless another public access roadway
across the BOR land is approved and constructed.
ON BEHALF OF ITSELF AND THE SUBSEQUENT OWNERS OF THE
SUBJECT PROPERTY, INCLUDING THE OWNERS OF THE INDIVIDUAL LOTS
WITHIN THE SUBJECT PROPERTY, DECLARANT COVENANTS AND AGREES TO
RELEASE, WAIVE AND DISCHARGE THE CITY OF LA QUINTA FROM AND
AGAINST ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, LOSSES, DAMAGES,
CAUSES OF ACTION, COSTS AND EXPENSES ARISING OUT OF OR RESULTING
FROM ANY FUTURE TERMINATION OF THE LICENSE AGREEMENT OR ARISING
OUT OF OR RESULTING FROM THE INABILITY OF THE CITY OF LA QUINTA TO
SECURE AN EXTENSION TO THE LICENSE AGREEMENT.
Declarant further agrees to provide a copy of this Covenant, including Exhibit A
hereto, to future purchasers or devisees of the Subject Property, including owners of
residential lots within the Subject Property. EACH OWNER OF SUCH RESIDENTIAL
LOTS, BY ACCEPTANCE OF THE DEED TO THE OWNERS' RESIDENTIAL LOT, IS
DEEMED TO COVENANT AND AGREE TO RELEASE, WAIVE AND DISCHARGE
THE CITY OF LA QUINTA FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, LIABILITIES, LOSSES, DAMAGES, CAUSES OF ACTION, COSTS AND
EXPENSES ARISING OUT OF OR RESULTING FROM ANY TERMINATION OF THE
LICENSE AGREEMENT OR ARISING OUT OF OR RESULTING FROM THE
INABILITY OF THE CITY OF LA QUINTA TO SECURE AN EXTENSION TO THE
LICENSE AGREEMENT. EACH OWNER OF SUCH RESIDENTIAL LOTS
ACKNOWLEDGES THAT ACCESS TO HIS, HER OR ITS LOT REQUIRES THE
CROSSING OF BOR LAND, AND SAID OWNER FURTHER ACKNOWLEDGES
THAT THE CITY OF LA QUINTA DOES NOT CONTROL THE ACTIONS OF THE
BOR, AND THE CITY DOES NOT OWN OR HAVE AN EASEMENT ON THE
PORTION OF JEFFERSON STREET WHICH CROSSES THE BOR PROPERTY.
This Covenant shall not be amended in any manner or terminated without the
prior written approval of the City of La Quinta and the recordation of any such approval
by the City of La Quinta.
This Covenant shall constitute a covenant running with and binding the land in
accordance with the provisions of California Civil Code Section 1468. Accordingly, the
Subject Property shall be held, sold, conveyed, mortgaged, encumbered, leased,
rented, used, occupied and improved subject to the aforementioned agreement and
covenant, all of which shall run with the Subject Property and shall be binding on all
parties having any right, title or interest in the Subject Property or any part thereof, their
heirs, successors and assigns, and shall inure to the benefit of each owner thereof, and
all of which are imposed on the Subject Property and every portion thereof.
IN WITNESS WHEREOF, Declarant has executed this Covenant as of the date
first written above.
ATTEST:
Un
Veronica Montecino
City Clerk
Date:
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
M. Katherine Jenson
City Attorney
"CITY"
CITY OF LA QUINTA, a public body,
corporate and politic
LE
Thomas P. Genovese
City Manager
"DECLARANT"
[TITLE OF DECLARANT]
Dated: By:
Its:
State of California )
County of )
On before me, , Notary Public,
(here insert name and title of the officer)
personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument, and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(seal)