2013 Costco - Vehicle Access & Utility Connection (Coral Mtn Apts)DOC-#-2013=0079ZT1
02/14/2013 04:11P Fee:NC
Page 1 of 9
Recorded in Official Records
County of Riverside
Larry Y. Yard
Assessor, County Clerk & Recorder
RECORDING REQUESTED BY IJ I IIIIII IIIIIII III IIIIII IIIIII IiIII (III) IV Illil IIII IIII
AND WHEN RECORDED MAIL TO: �
City of La Quinta S R _ U PAGE SIZE DA MISC LONG RFD COPY
P.O. Box 1504
La Quinta, CA 92247 M I A pp L I 465 426 PCOR NCOR SMF CHG exnM
Attn: City Clerk NC� L'l+ T: CTY UNI O�
(Exempt From Recording Fee per Gov't Code § 27383)
LICENSE FOR VEHICLE AND UTILITY IMPROVEMENTS
E
This License for Vehicle and Utility Improvements ("Agreement") is made effective
January 24, 2013, by and between Costco Wholesale Corporation, a Washington corporation
("Licensor") and the City of La Quinta, a California corporation and charter city ("Licensee").
Licensee and Licensor are referred to herein collectively as the "Parties."
RECITALS
A. Licensor is the owner of real property generally located at 79795 Highway 111,
La Quinta, California (the "Property").
B. Licensee desires to construct a vehicular cross access point and a utility
connection on the Property, as more particularly described below. Licensor has agreed to allow
Licensee to construct these improvements, upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, the
Parties hereby agree as follows:
1. Site Work. For purposes of this Agreement, "Site Work' shall mean the work
necessary to: (i) construct a driveway cross access ("Cross Access") in the location shown on the
site plan attached hereto and incorporated herein as Exhibit A ("Site Plan"); and (b) construct a
water line utility connection ("Utility Connection") in the location shown on the Site Plan.
2. Grant of License. Licensor hereby grants a limited, nonexclusive irrevocable
license to Licensee and the public to allow for the use of the Cross Access by the public for
shopping at the Property and properties immediately adjoining the Property (herein the "Access
License"). Licensee agrees that this Access License is granted with the permission of Licensor
and that no claim for adverse possession or prescriptive easement shall arise as a result of the use
of the Cross Access or any other portion of the Property by the public. In the event that the use of
the Cross Access becomes an undue burden on the Property or is used for purposes other than as
intended herein, the Licensee shall, at no cost to Licensee, cooperate in good faith with Licensor
in order to alleviate such impacts. Licensor reserves the right to make any and all alterations,
additions and improvements to the Property not inconsistent with the intended use of the Cross
Access, including but not limited to installation of traffic calming or traffic control measures,
subject to all governmental requirements applicable to the Property. Any such alterations,
additions, and/or improvements shall be made at the sole cost of Licensor.
3. Grant of Temporary Construction License. Licensor hereby grants a temporary,
nonexclusive license (the "Temporary "License") to Licensee and its contractors to enter upon
the Property for the limited purpose of constructing the Site Work, subject to the provisions
below.
a. Tenn of Temporary Construction License.
(i) Utility Connection. With respect to the construction of the Utility
Connection, the term of this Temporary License shall consist of a thirty (30) period commencing
not later than July 1, 2013. Licensee shall obtain approval of the actual commencement date of
the Temporary License from the on -site store manager of the Costco warehouse store located in
the City of La Quinta, which approval shall not be unreasonably withheld, conditioned, or
delayed.
(ii) Cross Access. With respect to the construction of the Cross Access, the
term of this Temporary License shall consist of a thirty (30) period commencing not later than
July 1, 2013. Licensee shall obtain approval of the actual commencement date of the Temporary
License from the on -site store manager of the Costco warehouse store located in the City of La
Quinta, which approval shall not be unreasonably withheld, conditioned, or delayed.
b. Work Hours. Licensor shall have the right to pre -approve all construction hours
relating to the Site Work. No construction work shall occur on May 24-25, 2013 or on June 30-
31, 2013.
C. Staging. No construction staging or storage of materials shall occur on the
Property.
d. Plan Approval. Licensor shall have the right to approve all construction plans
relating to the Site Work, including any modifications thereto. Licensee shall ensure that all Site
Work is constructed in accordance with the approved construction plans, including any approved
modifications thereto.
e. Costs. Any and all costs relating to the construction of the Site Work shall be
paid by Licensee.
f. Governmental Approvals. Licensee shall obtain all governmental approvals
necessary to perform the Site Work, at its sole cost and expense.
g. Coordination; Designated Representative. Licensee designates Tim Jonasson
(760) 777-7042; tjonasson@la-quinta.org as its Project Representative to Licensor. The Project
Representative shall promptly respond to any inquiries from the Licensor regarding this
Agreement or the performance of the Site Work. Licensor designates Bob Rivet (425) 313-6773;
brivet@costco.com as its primary project contact.
h. Safety and Signage. Licensee shall ensure that its activities on the Property are
conducted in a safe manner. Licensee shall erect and maintain safety barriers and any temporary
signage, if necessary to ensure a safe site during the term of this Agreement.
i. Due Care and Diligence. Licensee shall use due care and diligence in the exercise
of its rights hereunder, and it will at all times exercise its rights hereunder at such times and in
such manner as approved by Licensor and as will not occasion (a) any interference with the
business operations on the Property, (b) any interference with the customary access to or from
the Property, or (c) any damage or injury to the Property, or to any agents, servants, invitees or
employees of Licensor.
j. Condition of Property. Licensee shall not permit or commit any waste, damage,
or destruction to the Property and shall immediately repair and restore the Property to
substantially the same condition it was in prior to the start of Licensee's activities, subject to the
actual improvements installed by Licensee as part of the Site Work.
k. No Hazardous Wastes. Licensee shall not allow any toxic, hazardous or
petroleum products to be released, discharged or deposited onto the Property in connection with
Licensee's activities hereunder.
I. Liens. Licensee shall keep the Property free from all liens or other encumbrances
arising out of any work performed, materials furnished or obligations incurred by Licensee.
Licensee covenants and agrees that it will pay or cause to be paid all sums legally due and
payable by it on account of any labor performed or materials furnished in connection with any
Site Work on the Property, and that Licensee will indemnify and hold the Licensor harmless
from all loss, cost or expense based on or arising out of asserted claims or liens against the
Property arising out of any work performed, materials furnished or obligations incurred by
Licensee. Licensee shall give Licensor immediate written notice of the placing of any such lien
or encumbrance against the Property and Licensee shall cause such lien or encumbrance to be
discharged within thirty (30) days of the filing or recording thereof; provided, however, Licensee
may contest such liens or encumbrances as long as such contest prevents foreclosure of the lien
or encumbrance and Licensee causes such lien or encumbrance to be bonded or insured over in a
manner satisfactory to Licensor, within such thirty (30) day period.
M. Assumption of Risk. Licensee assumes all risks and liabilities arising out of
Licensee's entry onto the Property and all activities performed on the Property by Licensee and
Licensee's contractors.
n. Indemnity. Licensee covenants and agrees that Licensor shall not at any time or
to any extent whatsoever be liable, responsible or held accountable for, and Licensee agrees to
indemnify and hold harmless and, at Licensor's option, defend Licensor, its officers, agents,
employees, successors and assigns from and against any and all suits, actions, legal proceedings,
claims, demands, obligations and expenses (including attorneys' fees and expenses) of whatever
kind or character relating to Licensee's, and its contractors, subcontractors, employees, agents,
representatives, guests or invitees use of the Property, including, but not limited to: (a) personal
injury (including death) to any person; (b) property damage of any kind; (c) claims of lien from
Licensee's contractors, subcontractors, agents, or representatives or otherwise related to the Site
Work; (d) the presence of hazardous, toxic or petroleum products on the Property caused or
exacerbated by Licensee, or its contractors, subcontractors, employees, agents or representatives;
or (e) the violation of any federal, state or local law, ordinance, regulation or other governmental
3
requirement caused by Licensee, or its contractors, subcontractors, employees, agents,
representatives, guests or invitees.
o. Insurance. Licensee shall procure and maintain in effect during the term hereof,
without expense to Licensor, the following:
i. Liability. Commercial general liability insurance and property damage
insurance, including a contractual liability endorsement covering Licensee's obligations under
Section 3(n), in the minimum amount of $1,000,000 per occurrence, $2,000,000 aggregate,
together with an additional $1,000,000 umbrella. In addition, Phoenix and EST shall maintain
contractor's pollution liability insurance in the minimum amount of $2,000,000 per occurrence
and professional errors and omissions liability insurance in the amount of at least $2,000,000
(with no pollution exclusion).
ii. Automobile Liability. Commercial Auto Liability Insurance with a
combined single limit of not less $1,000,000 limit for bodily injury and property damage
liability, together with an additional $1,000,000 umbrella. Coverage shall be provided for all
owned, leased, non -owned and hired vehicles. Auto liability insurance requirements shall apply
to all operations of Licensee and its contractors and subcontractors. If umbrella or excess
liability policies are required to achieve necessary total limits, coverage shall be no less broad in
scope than underlying general and automobile liability insurance.
iii. Worker Compensation. Worker's Compensation insurance with limits as
required by statute.
iv. At least three (3) days prior to entry onto the Property, Licensee shall
furnish Licensor with a certificate of such policies of insurance. Licensor shall be named as
additional insured. All policies shall contain a waiver of insurer's rights to subrogate against
Licensor. Insurance policies maintained by Licensee shall be primary. Policies maintained by
Licensor shall be excess and noncontributory to policies maintained by Licensee. The obligation
to carry insurance shall not limit or modify any other obligations assumed by Licensee
hereunder, nor shall Licensor be under any duty to examine such certificate or to advise Licensee
in the event its insurance is not in compliance with this Agreement. All policies shall be placed
with insurance carriers rated by AM Best at B+ VII or better and such policy shall provide that it
is not subject to cancellation or reduction in coverage except after thirty (30) days' prior written
notice to Licensor. Licensee's maintenance of insurance shall not be deemed to release or
diminish liability of Licensee, including without limitation, liability under the indemnity
provision of this Agreement. Damage recoverable by Licensor shall not be limited by amount or
scope of the required insurance coverage.
4. General Provisions.
a. Entire Agreement — No Oral Modifications. This Agreement and the
exhibits hereto constitute the final and complete agreement, and supersede all prior
correspondence, memoranda or agreements between the parties relating to the subject matter
hereof. This Agreement cannot be changed or modified other than by a written agreement
executed by the Parties.
4
b. Liability. Licensee, and not Licensor, shall be liable for all claims,
demands, liens, costs, expenses, fees, fines, penalties, damages (including without limitation
incidental and consequential damages) judgments, any other liabilities and attorney's fees, if
any (collectively, "Claims"), arising directly or indirectly from the Site Work, any access
obtained pursuant to this Agreement, any acts or omissions of Licensee while on or about the
Property, and any breach of this Agreement by Licensee. Notwithstanding the foregoing,
Licensee shall not be liable to the extent such Claims arise from any alterations, additions
and/or improvements to the Property made by Licensor pursuant to Licensor's Reservation in
Section 2 of this Agreement.
C. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which shall constitute one and the same
instrument. The Parties further agree that a copy of or a facsimile signature shall be treated as
an original.
d. Assignment. This Agreement is personal to Licensee and Licensee shall
not have any right to assign its rights or obligations hereunder. Any attempt by Licensee to
assign this license shall terminate this Agreement. Licensor shall have the right to assign any
and all of its rights and obligations hereunder.
e. Binding Effect. This Agreement shall run with the Property and be
binding on and inure to the benefit of Licensor and Licensee and their respective successors
and assigns.
f. Attorneys' Fees. In the event that any party hereto brings an action or
proceeding for a declaration of the rights of the parties under this Agreement, for injunctive
relief, or for an alleged breach or default of this Agreement, or any other action arising out of
this Agreement or the transactions contemplated hereby, the prevailing party in any such action
shall be entitled to an award of reasonable attorneys' fees and any court costs incurred in such
action or proceeding, in addition to any other damages or relief awarded, regardless of whether
such action proceeds to final judgment.
g. Severability. If any term or provision of this Agreement shall, to any
extent, be held invalid or unenforceable, the remaining terms and provisions of this Agreement
shall not be affected thereby, but each remaining term and provision shall be valid and
enforced to the fullest extent permitted by law.
h. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
i. Counterparts. This Agreement may be executed in more than one
counterpart, each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
j. Captions. The captions of this Agreement are inserted solely for
convenience of reference only and do not define, describe or limit the scope or intent of this
Agreement or any term hereof.
M
k. Exhibits. All exhibits attached hereto are hereby incorporated herein by
reference and made a part hereof.
1. Construction. Licensee and Licensor acknowledge that each party and its
counsel have reviewed and revised this Agreement and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement (including the exhibits) or any amendments
thereto, and the same shall be construed neither for nor against Licensee or Licensor, but shall
be given a reasonable interpretation in accordance with the plain meaning of its terms and the
intent of the Parties.
in. Survival of Terms. The covenants and indemnity of Licensee contained in
this Agreement shall survive the termination of this Agreement.
5. Notices. All notices, demands, consents, approvals and other communications
(each, a "Notice") which are required or desired to be given by either party to the other under
this Agreement shall be in writing and shall be (a) hand delivered, (b) sent by U.S. registered or
certified mail, postage prepaid, return receipt requested, (c) sent by reputable overnight courier
service that provides a receipt with the time and date of delivery, or (d) transmitted by facsimile
machine (with a copy, including the transmission sheet indicating successful transmission of the
Notice by facsimile machine, to follow by regular mail), addressed to the appropriate party at its
address set forth below, or at such other address as such party shall have last designated by
Notice to the other. Notices shall be deemed given when delivered, if delivered by hand or by
overnight courier; at the time and on the date of machine transmittal, if given by facsimile; or
three days after mailing, if given by U.S. mail. Rejection or other refusal by the addressee to
accept a Notice or the inability to deliver the Notice because of a changed address of which no
Notice was given shall be deemed to be receipt of the Notice sent. Notice addresses for the
parties are as follows:
City of La Quinta Notices Delivered by U.S. Mail:
La Quinta Housing Authority
P.O. Box 1504
La Quinta, CA 92247
Phone No.: (760) 777-7031
Facsimile No.: (760) 777-7101
Attention: Executive Director
Notices Delivered Personally or by Courier:
La Quinta Housing Authority
78-495 Calle Tampico
La Quinta, CA 92253
Phone No.: (760) 777-7031
Facsimile No.: (760) 777-7101
Attention: Executive Director
0
Costco: Costco Wholesale Corporation
999 Lake Drive
Issaquah, WA 98027
Attention: Legal Department/Property Management
And to:
Costco Wholesale Corporation
79795 Highway I I I
La Quinta, CA 92253
Attn: Warehouse Manager
DATED as of the day and year first set forth above.
LICENSOR:
LICENSEE:
ATTEST:
Susan Maysels, City Cl c
APPROVED AS TO FORM:
RUTAN CKER L
By:
M.-'Katherine erine Jenson, Ci ttomey
COSTCO WHOLESALE
CORPORATION, a Washington corporation
By.
Its. i 5I�✓ti FJt C ✓� I n v
CITY OF LA QUINTA, a California
municipal corporation and charter city
organized and existing under the Constitution
of the State of Califom
By.
ra vacek, City Manager
State of Washington
County of King
On 5kN uA&4 24 Lot 3 before me, Rick Jerabek ,
(insert name and title of the officer)
Notary Public, personally appeared Gail E. Tsuboi, Assistant Secretary of Costco Wholesale
Corporation, a Washington corporation, who proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument and acknowledged to me that
she executed the same in her authorized capacity, and that by her signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Washington that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
State of California
County of Riverside
On JA44AR4 31� 2013 before me, SiASA14 MA`/SELS
(insert name and title of the officer)
Notary Public, personally appeared �RAnik J. SPE✓qe&K
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(.&) is/sm
subscribed to the within instrument and acknowledged to me that he/sbebtkW executed the same
in hisA+w4kA w authorized capacity(1aa), and that by his/I116WMair signature(e) on the instrument
the person(o), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature 28d1W11�
laws of the State of California that
SUSAN MYSELS
p Comm* 1"""'M x
R M COLA TN MIIA8
COMOM n ' ARR 1 2013 +
(Seal)
EXHIBIT A - SITE PLAN
PgOJECT DATA
--------'
'--------- ant---------------
f1AlY0N
UUONE"71
.
vwIva
--- i
�G
Il /
,. , w�j 1�� ImI➢ImIV
-- rwiar..ar
WHOLESALE
V'/
/ REGIONAL MAP
i
VICINITY MAP ,
b
EXISTING SITE PLAN EX71
A
2