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Kohls & One Eleven LQ /MOU & Temp. Const. Adams St. Signal 15MEMORANDUM OF UNDERSTANDING BY AND AMONG KOHL'S DEPARTMENT STORE, AND ONE ELEVEN LA QUINTA, LLC, AND THE CITY OF LA QUINTA This Memorandum of Understanding ("MOU"), dated this day of 2015, is made by and among the CITY OF LA QUINTA, a municipal corporation and charter city ("City"), KOHL'S DEPARTMENT STORES, INC., a Delaware corporation licensed to do business in California ("Kohl's"), and ONE ELEVEN LA QUINTA, LLC, a California limited liability company ("One Eleven"). City, Kohl's and One Eleven hereinafter may be referred to individually as a "Party" and collectively as the "Parties"). WHEREAS, the City is the lead agency with regard to the Adams Street Signal and Street Improvements Project known as City Project #2012-01 (the "Project"). As part of the Project, the City is the lead agency for infrastructure construction associated with a street signal and related traffic circulation improvements at the intersection of Adams Street and Corporate Center Drive (the "Intersection"), which improvements are the installation of a new four -legged traffic signal, median improvements on Adams Street, and entry improvements onto One Eleven LLC Tract (defined below), as more particularly set forth in Exhibit A and Exhibit B attached hereto and incorporated herein by this reference (the "Traffic Circulation Improvements") and described in the scope of work set forth in Exhibit C attached hereto and incorporated herein by this reference (the "Scope of Work"). WHEREAS, Kohl's is the owner of certain real property in the City of La Quinta, County of Riverside, State of California with Assessor's Parcel Number 643-080-004 ("Kohl's Tract"). WHEREAS, One Eleven is the owner of certain real property in the City of La Quinta, County of Riverside, State of California with Assessor's Parcel Number 643-080-026 ("One Eleven LLC Tract"). WHEREAS, the Parties have negotiated and agree that the Traffic Circulation Improvements at the Intersection, with appurtenant real property dedication, easements, and other improvements, is the preferred alternative for the safety and convenience of the traveling public, as more particularly set forth in this MOU. ANIVA_&N,1301 I. NOW, THEREFORE, based upon the foregoing Recitals, which are incorporated herein by this reference and a substantive part of this MOU, and for other good and valuable consideration, the Parties agree as follows: 698/015610-0002 7589197, 10 a01/27/15 1. Construction of Improvements. Subject to the terms and conditions set forth in this MOU, City shall construct and complete the Traffic Circulation Improvements no later than November 1, 2015, in accordance with the Traffic Circulation Improvements and Scope of Work, and the timing of the Traffic Circulation Improvements shall not exceed 180 days from the date of commencement of the Traffic Circulation Improvements under the Scope of Work. 2. Kohl's Payment Obligation. Kohl's shall contribute $50,000 to the Traffic Circulation Improvements. Kohl's shall pay to City four (4) equal installment payments of $12,500 each. Kohl's shall make each installment payment annually, commencing with the first installment payment due to City no later than April 1, 2015, and the final installment payment due to City no later than April 1, 2018. 3. One Eleven Payment Obligatio . One Eleven shall contribute $50,000 to the Traffic Circulation Improvements. One Eleven shall pay to City four (4) equal installment payments of $12,500 each. One Eleven shall make each installment payment annually, commencing with the first installment payment due to City no later than April 1, 2015, and the final installment payment due to City no later than April 1, 2018. 4. Dedication. In order to facilitate City's completion of the Traffic Circulation Improvements, One Eleven shall dedicate to the City that portion of the One Eleven LLC Tract from beginning of curve on One Eleven LLC Tract to the existing right-of-way for the full width of the new north-westerly leg of the Intersection as depicted on the Traffic Circulation Improvements and containing approximately 1,827 square feet. 5. Transfer of Portion of One Eleven LLC Tract to Kohl's. In order to facilitate the City's completion of the Traffic Circulation Improvements, a portion of the One Eleven LLC Tract shall be deeded to Kohl's, as depicted on the Traffic Circulation Improvements (noted as "Shovlin Property Deeded to Kohl's"). One Eleven shall apply for and process, and City shall assist with, a new parcel map or lot -line adjustment pursuant to the California Subdivision Map Act to cause one half of the relocated driveway into the shopping center off of Adams Street to be included in the Kohl's Tract as more particularly depicted on the Traffic Circulation Improvements. 6. Transfer of Portion of Kohl's Tract to One Eleven. In order to facilitate the City's completion of the Traffic Circulation Improvements, a portion of Kohl's Tract shall be deeded to One Eleven, as depicted on the Traffic Circulation Improvements (noted as "Kohl's Property Deeded to Shovlin"). One Eleven, with the consent of Kohl's, shall apply for and process, and City shall assist with, a new parcel map or lot -line adjustment pursuant to the California Subdivision Map Act to cause the transfer of property identified as "Kohl's Property Deeded to Shovlin" as depicted on the Traffic Circulation Improvements. 7. Reservation of Discretion. Nothing in this MOU shall obligate the Planning Commission, City Council, or any other body in the City with discretionary review or legislative authority over a parcel map or lot -line adjustment. Kohl's and One Eleven 698/015610-0002 758919T 10 a01/27/15 -2- expressly acknowledge and agree that the Planning Commission, City Council, and any other body with discretionary review or legislative authority over the Kohl's Tract and One Eleven LLC Tract have the discretionary power to approve, approve with conditions, or deny any or all land use entitlements as may be required by law, and nothing in this MOU removes or limits that discretionary power. In the event the Planning Commission, City Council, or any other body in the City with discretionary review or legislative authority should deny a parcel map or lot -line adjustment submitted pursuant to paragraphs 5 or 6 of this MOU, Kohl's and One Eleven shall be fully reimbursed for any payments it made pursuant to paragraphs 2 and 3 of this MOU, and the City shall restore an access driveway from Adams Street onto the Kohl's Tract. 8. Closure of Access Driveways. Upon completion of the Traffic Circulation Improvements, Kohl's agrees to the permanent closure of two (2) access driveways from Adams Street onto the Kohl's Tract identified on Exhibit A as "close access" and "exist closed access" along Adams Street (the "Kohl's Access Driveways"). Kohl's acknowledges and agrees to the temporary closure of the access driveway identified on Exhibit A as "close access" at intermittent periods during construction of the Project. 9. Temporary Construction Easement. In order to facilitate the City's completion of the Traffic Circulation Improvements, Kohl's and One Eleven, respectively, shall provide the City with their respective temporary construction easements in the areas shown in Traffic Circulation Improvements as being required for the proper construction of curbing, landscaping, cut and/or fill slopes, and other construction activities associated with the Traffic Circulation Improvements. Said temporary construction easement shall be in the forms attached hereto as Exhibit D and Exhibit D-1, and shall be at no cost to City. Said temporary construction easement shall terminate on the date that is the earlier of one (1) year from the date of this MOU or at such time as the Traffic Circulation Improvements are completed. 10. Development of One Eleven LLC Tract. Except for the Traffic Circulation Improvements as set forth in this MOU, One Eleven shall construct, or cause the construction of, and shall pay for any and all other improvements to the One Eleven LLC Tract in accordance with all applicable laws, entitlements, and approvals. 11. Compliance with Laws and Standards. The Traffic Circulation Improvements shall be constructed to meet or exceed the standards applied to the balance of the Project and shall be harmonious with the shopping center. 12. Maintenance of Improvements. Upon completion of the Traffic Circulation Improvements, City shall be responsible for the operation and maintenance of the Adams Street signal at the Intersection, the maintenance of the curb and gutter along Adams Street, and the medians on Adams Street. City shall not be responsible for the operation and maintenance of the other Traffic Circulation Improvements, on either the Kohl's Tract or the One Eleven LLC Tract, or of any other improvements on, over, under, or about either the Kohl's Tract or the One Eleven LLC Tract. 698/015610-0002 7589197, 10 a01/27/15 -3- 13. Full Satisfaction of City Obligations; Waiver and Release of Claims. Kohl's and One Eleven, respectively, agree that the terms and conditions set forth in this MOU constitute full satisfaction of any and all obligations from the City to both Kohl's and One Eleven for the Traffic Circulation Improvements. Neither Kohl's nor One Eleven, jointly or separately, shall seek any claims relating to the effect or impact the Traffic Circulation Improvements have on the Kohl's Tract and One Eleven LLC Tract, including without limitation any claims for relocation assistance, relocation benefits, interruption of the use and enjoyment of real property, any business interruption or loss of business goodwill, compensation for real or personal property, improvements pertaining to the realty, inverse condemnation or taking of property, inverse condemnation damages, pre - condemnation damages, or damages of any nature whatsoever, except as expressly provided in this MOU or the temporary construction easement. Except for reimbursement and restoration of a driveway authorized pursuant to paragraph 7 of this MOU and Kohl's ability to exercise self-help (and be reimbursed) to both restore an access driveway and complete any work on the Kohl's Tract, the sole and exclusive remedy against City by either Kohl's or One Eleven, or both, for breach of this MOU by the City, shall be to seek declaratory and injunctive relief to compel City to complete the Traffic Circulation Improvements pursuant to this MOU. 14. Indemnification. City shall indemnify, defend, protect and hold Kohl's harmless from and against any and all claims, demands, causes of action, damages, losses, or liabilities incurred in connection with or arising out of the construction of the Project by the City or invitees, contractors, or agents of the City performing work on behalf of the City, except those claims, demands, causes of action, damages, losses, or liabilities attributed to or caused by the negligence or willful misconduct of Kohl's. City shall indemnify, defend, protect and hold One Eleven harmless from and against any and all claims, obligation, demands, causes of action, damages, losses, injuries or liabilities incurred in connection with or arising out of the construction of the Project by the City or invitees, contractors, or agents of the City performing work on behalf of the City, except those claims, demands, causes of action, damages, losses, or liabilities attributed to or caused by the negligence or willful misconduct of One Eleven. 15. Additional Waiver/Release; Reservation of Rights. In addition to the release/waiver of claims in the preceding paragraph, Kohl's shall seek neither a takings claim nor pursue an inverse condemnation claim against City for the permanent closure of the Kohl's Access Driveways. Kohl's shall provide City with conveyance documents, mutually acceptable to the Parties, necessary to effectuate such permanent closures of the Kohl's Access Driveways. 16. Notice of Work to Kohl's. Prior to any construction activities on Kohl's Tract or One Eleven LLC Tract, City shall provide thirty (30) days advance written notice to Kohl's unless an emergency requires immediate access onto Kohl's Tract or One Eleven LLC Tract, in which case City shall provide written notice to Kohl's of the emergency and the City's entry onto the Kohl's Tract or One Eleven LLC Tract within the next business day. No construction activities performed by City shall occur on the Kohl's Tract or One Eleven LLC Tract from November 1 through January 15 without the prior written 698/015610-0002 758919T 10 a01/27/15 -4- consent of Kohl's, which may be granted or denied in its sole and absolute discretion unless an emergency requires the City to have immediate access onto Kohl's Tract or One Eleven LLC Tract, in which case notice of said emergency shall comply with the provisions of this paragraph. 17. Notice of Work to One Eleven. Prior to any construction activities on the One Eleven LLC Tract, City shall provide thirty (30) days advance written notice to One Eleven unless an emergency requires immediate access onto the One Eleven LLC Tract, in which case City shall provide written notice to One Eleven of the emergency and the City's entry onto the One Eleven LLC Tract within the next business day. No construction activities performed by City shall occur on the One Eleven LLC Tract from November I through January 15 without the prior written consent of One Eleven, which may be granted or denied in its sole and absolute discretion unless an emergency requires the City to have immediate access onto the One Eleven LLC Tract, in which case notice of said emergency shall comply with the provisions of this paragraph. 18. Restore/Repair Kohl's Tract. City shall restore, as close as is reasonably possible, any portion of the Kohl's Tract on which the City entered and used pursuant to the temporary access rights and use easement set forth in this MOU to the condition in which that portion of the Kohl's Tract existed on the date on which City commences the construction for the Traffic Circulation Improvements. City shall apply reasonable efforts to instruct any contractor selected for the construction of the Traffic Circulation Improvements not to perform any activities that would materially impact the operations of the landowner, particularly during the months of November and December, and to provide a constant free flow of traffic and directional signage, if requested and as needed, to Kohl's business. 19. Restore/Repair One Eleven LLC Tract. City shall restore, as close as is reasonably possible, any portion of the One Eleven LLC Tract on which the City entered and used pursuant to the temporary access rights and use easement set forth in this MOU to the condition in which that portion of the One Eleven LLC Tract existed on the date on which City commences the construction for the Traffic Circulation Improvements. City shall apply reasonable efforts to instruct any contractor selected for the construction of the Traffic Circulation Improvements not to perform any activities that would materially impact the operations of the landowner, particularly during the months of November. and December, and to provide a constant free flow of traffic and directional signage, if requested and as needed, to the businesses on the One Eleven LLC Tract 20. Entire Agreement; Amendments. This MOU (which includes attachments and exhibits) contains the entire agreement of the Parties hereto, and supersedes any prior written or oral agreements between them concerning the subject matter contained herein. This MOU cannot be changed or terminated orally or electronically but only by an amendment in writing signed by the Parties. 21. Notices. All notices under this MOU shall be effective (i) upon personal delivery, (ii) upon delivery by reputable express courier that provides a receipt with the date and time 698/015610-0002 7589197, 10 a01/27/15 -5- of delivery, or (iii) three (3) business days after deposit in the United States mail, registered or certified, postage fully prepaid and addressed to the respective parties as set forth below, or by method of delivery (such as e-mail) as may be acceptable to that Party (memorialized in writing) or to such other address as the Parties may from time to time designate in writing: To Kohl's: Kohl's Department Stores, Inc. N56 W 17000 Ridgewood Drive Menomonee Falls, WI 53051 Attn: Law Department To One One Eleven La Quinta, LLC Eleven: 71084 Tamarisk Lane Rancho Mirage, CA 92270 Attention: Mr. Michael Shovlin To City: City of La Quinta 78-495 Calle Tampico La Quinta, California 92253 Phone No.: 760-777-7031 Attention: City Manager with City Rutan & Tucker, LLP Copy to: 611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92628-1950 Phone No.: (714) 641-5100 Attention: William H. Ihrke, Esq. 22. Liability for Breach. No termination of this MOU shall release any Party from any liability or obligation under this MOU resulting from any acts, material omissions, or events happening prior to the termination of this MOU; provided, however, that the remedies available for any liability shall be limited to those expressly provided in this MOU. 23. No Cross -Default. There shall be no cross -defaults between. Kohl's and One Eleven. A default under this MOU by Kohl's shall not be deemed a default against One Eleven, and a default under this MOU by One Eleven shall not be deemed a default against Kohl's. 24. No Joint Venture. Nothing in this MOU is intended to or shall be deemed to create any joint venture or partnership among the Parties, and each of the Parties shall remain an independent entity and contracting party as related to the other Parties. 25. Assignments. This MOU shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, personal representatives, successors and assigns. Except for transfers and assignments of real property interests as set forth in this MOU, no Party may assign this MOU or any interest or right hereunder without the prior written 698/015610-0002 758919T 10 a01/27/15 -6- consent and approval of the other Parties, which consent and approval may be withheld in the sole and absolute discretion of either Party. No provision of this MOU is intended nor shall in any way be construed to benefit any person or entity not a signatory hereto or to create a third party beneficiary relationship. 26. Interpretation. This MOU is deemed to have been prepared by all of the Parties hereto, after consulting with legal counsel, and any uncertainty or ambiguity herein shall not be interpreted against the drafter, but rather, if such ambiguity or uncertainty exists, shall be interpreted according to the applicable rules of interpretation of contracts under the law of the State of California. 27. Authority to Bind Parties. The persons signing this MOU warrant that each of them has the authority to execute this MOU on behalf of the Party on whose behalf said person is purporting to execute this MOU, and that this MOU is a binding obligation of said Parties. 28. Governing Law. This MOU shall be construed and enforced in accordance with the laws of the State of California without regard to conflict of law principles. 29. Attorney's Fees. In the event of litigation relating to this MOU, the prevailing Party shall be entitled to reasonable attorney's fees and costs, including any fees and costs on appeal. 30. Severability. In the event that any provisions of this MOU are held by a court of competent jurisdiction to be invalid or unenforceable, the same shall not affect, in any respect whatsoever, the validity of the remainder of this MOU. 31. Waiver. No waiver or consent shall be implied from silence or any failure of a Party to act, except as otherwise specified by this MOU. Any Party may specifically and expressly waive, in writing, any portion of this MOU or any breach hereof, but no such waiver shall constitute a further or continuing waiver of any proceeding or succeeding breach of the same or any other provision. 32. Counterparts. This MOU may be executed in two or more counterparts, each of which when so executed and delivered shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. [Signatures Appear on Next Page] 698/015610-0002 758919T 10 a01/27/15 -7- IN WITNESS WHEREOF, the Parties hereto have caused this MOU to be signed as of the day and year first above written, Datea ATTEST: Susan Maysels, City Cler APPROVED AS TO FORM: RUTAN & TUCKER, LL By. _ William H. Ihi°ke, City Attorney Date; . me wK201 Date.. ��.. ._ 2014 CITY OF s . DEPARTMENT ., a Delaware corporation v: Name Its: "ONE ELEVEN" '0 98 O156l 10-0002 m8--. 7589,97. 0 a0 M(15 i r r Name. Michael Shovlin Its: Manager IN WITNESS F, the Parties hereto have caused this MOU to be signed as of the day and year first above written. Date: , 2014 ��I},mg&MI APPROVED AS TO FORM: RUTAN & TUCKER, LLP y: William H, Ihrke, City Attorney Date: ✓ ' 201 Date: 12014 660TY17 CITY OF LA QUINTA, a California municipal corporation and charter city By: Name: Frank J. Spevacek Its: City Manager "KOHL'S" KOHL'S DEPARTMENT STORES, INC., a Delaware corporation y "ONE ELEVEN" ONE ELEVEN LA QUINT,, California• liability company y: Name: Michael Shovlin Its: Manager 6991015610-0002 7589197,10 a01/27/15 -gm IN WITNESS WHEREOF, the Parties hereto have caused this MOU to be signed as of the di and year first above written. Susan Maysels, City Clerk APPROVED AS TO FORM: RUTAN & TUCKER, LLP By: William H. lhrke, City Attorney Date: 2014 *ate: 2014 CITY OF LA QUINTA, a California municipal corporation and charter city By: Name: Frank J. Spevacek Its: City Manager By: Name: Its: • ONE ELEVEN LA QUINTA, LLC, a California limited liability company ij�baql Shovlin Its: Manager 698/015610-0002 7589197.10 a01/27115 -8- EXHIBIT "A" and EXHIBIT 66B99 [attached] 698/015610-0002 7589197.10 a01/27/15 EXHIBIT 64C9 [attached] 698/015610-0002 758919T 10 a01/27/15 Project Type: Secondary Arterial Project: Adams Street Traffic Signal and Street Improvements (Highway Ill to Adams St. Bridge) The proposed project scope is for the construction of a four legged signalized intersection at Corporate Center Drive and Adams Street. The fourth leg is proposed to enter into the existing shopping center through two private properties. The new signal will be placed at the intersection and include new ADA compliant curb ramps. The project includes the installation of new median curbs from Highway 111 to the Adams Street Bridge. This project does not include landscape and irrigation on private property, which will be the future responsibility of the respective private property owners. ITEM DESCRIPTION UNITS QUANTITY UNIT TOTAL COST T A MOBILIZATION LS 1 $28,000.00 $ 28,000.00 B TRAFFIC CONTROL LS 1 $60,000.00 $ 60,000.00 C DUST CONTROL LS 1 $10,000.00 $ 10,000.00 D CLEARING AND GRUBBING LS 1 $35,000.00 $ 35,000.00 UNCLASSIFIED EXCAVATION (INCLUDES, PAVEMENT REMOVAL, CURB AND GUTTER REMOVAL, AND OTHER E MISC REMOVAL) LS 1 $28,740.001 $ 28,740.00 OUTSIDE CITY R/W - INSTALL SUITABLE BACKFILL MATERIAL 4" BELOW TOP OF CURB AND AS DIRECTED BY F THE CITY CY 193 $13.00 $ 2,509.00 CONSTRUCT ADA CURB RAMP CASE "A" PER CITY G OF LA QUINTA STD. 250 EA 2 $2,000.00 $ 4,000.00 CONSTRUCT ADA CURB RAMP CASE "B" PER CITY H OF LA QUINTA STD. 250 EA 1 $2,000.00 $ 2,000.00 CONSTRUCT ADA CURB RAMP CASE "D" PER CITY I OF LA QUINTA STD. 250 EA 1 $2,000.00 $ 2,000.00 INSIDE CITY R/W - CONSTRUCT 6" CURB & GUTTER PER J-1 CITY OF LA QUINTA STD. 201 LF 221 $16.00 $ 3,536.00 OUTSIDE CITY R/W - CONSTRUCT 6" CURB & GUTTER PER J-2 CITY OF LA QUINTA STD. 201 LF 129 $16.00 $ 2,064.00_ INSIDE CITY R/W -CONSTRUCT 4" ASPHALT CONCRETE K-1 OVER 8" CLASS 11 AGGREGATE BASE SF 14177 $6.00 $ 85,062.00 OUTSIDE CITY RJW - CONSTRUCT 4" ASPHALT CONCRETE K-2 OVER 8" CLASS 11 AGGREGATE BASE SF 4664 $&00 $ 27,984.00 INSIDE CITY R/W -CONSTRUCT 6" MEDIAN CURB PER CITY L-I OF LA QUINTA STD. 210 LF 2339 $12.00 $ 28,068.00 OUTSIDE CITY R/W - CONSTRUCT 6" MEDIAN CURB PER L-2 CITY OF LA QUINTA STD. 211 LF 845 $12.00 $ 10,140.00 CONSTRUCT SIDEWALK PER CITY OF LA QUINTA M STD. 240 & 241 SF 788 $4.00 $ 3,152.00 CONSTRUCT CROSS GUTTER PER CITY OF LA N QUINTA STD. 230 & 231 SF 1,706 $12,00 $ 20,472,00 CONSTRUCT STAMPED CONCRETE PER CITY OF LA 0 QUINTA STD. 720 SF 2,813 $6.50 $ 18,284.50 P TRAFFIC SIGNAL CONTROLLER CONCRETE PAC SF 165 $4.00 $ 660.00 Q SIGNING AND STRIPING LS 1 $20,000.00 $ 20,000.00 R INSTALL TRAFFIC SIGNAL EA 1 $149,850.00 $ 149,850.00 INSIDE CITY R/W - RESTORE PARKWAY LANDSCAPE IN S-1 KIND SF 611 $2.00 $ 1,222.00 OUTSIDE CITY R/W - RESTORE PARKWAY LANDSCAPE IN S-2 KIND SF 108 $2.00 $ 216.00 ADJUST TO GRADE WATER VALVE AND FRAME PER T CVWD STD. S-IB UNDER DIRECT CVWD INSPECTION EA 11 $2,500.001 $ 27,500.00 SUB TOTAL 1 1 $ 570,459.50 Design (Actual): 1 $--7-2,90-0070 Professional (Actual): $ 33,962.70 Technical (9.75%):1 $ 55,619.80 Estimated Soft Costs: 28,522.98 Contingency (10%):1 $ 57,045.95 1/14/2015 18,510.93 EXHIBITS 66D99 AND 66D-l" [attached] 698/015610-0002 758919710 a01/27/15 1 ) I(City of La Quinta "City"), and 2 : KUML"5 UtF'AK I MLN 1. 51 UKtS INU. a uelaware-c;or oration -- (Herein referred to as "Grantor") 3 PROJECT: Adams Street Signal and Median Construction PARCEL: Parcel 6 of PM 25865 4 APN: 643-080-004 5 TEMPORARY CONSTRUCTION AGREEMENT ("Agreement") 6 1. The right is hereby granted City to enter upon and use the land of Grantor in the City of La Quinta, County of Riverside, State of California, described as a portion of Assessor's Parcel Number 643-080- 004, highlighted on the map attached hereto, and made a part hereof, for all purposes necessary to facilitate and accomplish the construction of the Adams Street Signal and Median Island improvements a along with the necessary parking lot improvements on Grantor's property for proper circulation. 9 2. The temporary construction easement, used during construction of the project consists of approximately 0.58 acres as designated on the attached map, referenced as Exhibit "A" ("Temporary Easement Parcel"). This Agreement is entered into concurrently with and pursuant to that certain Memorandum of 10 ' Understanding by and among the City, Grantor, and One Eleven La Quinta LLC, dated of or about even date ("MOU"). 11 3.- A thirty (30) day written notice shall be given to Grantor prior to using the rights herein granted. The 12 rights herein granted may be exercised for four months (4) months (subject to month -to -month extensions if necessary for completion of commenced work that is within the scope of work for which this temporary construction easement is granted) from the thirty (30) day written notice, or until completion of 13 ` said project, whichever occurs first; provided, however, the maximum duration of the temporary construction easement herein granted to the City is for a period ending one year from the date of this 14 Agreement. Construction will be prosecuted with continued diligence. 15 4. It is understood that the City may enter upon Grantor's property where appropriate or designated for the purpose of getting equipment to and from the Temporary Easement Parcel as well as providing 16 construction activities for matching the Grantor's property with the proposed street improvements. City agrees not to damage or leave debris on Grantor's property in the process of performing such activities, and if such damage occurs or debris is deposited, City shall repair the damage or remove the debris, as 17 applicable, not later than the earlier of the completion of the work or the expiration of the easement granted herein. 18 5. The right to enter upon and use Grantor's land includes the right to remove and dispose of real and 19 personal property located within the Temporary Easement Parcel; provided, however, that no utility lines, pipes or other facilities located within the Temporary Easement Parcel shall be removed, damaged or 20 adversely affected by the City. If any interruption in utility services is unavoidable, the interruption shall be coordinated with the Grantor so as to cause the least inconvenience to occupants of the adjoining shopping center. 21 6. At the termination of the period of use of the Temporary Easement Parcel by City, but before its 22 relinquishment to Grantor, debris generated by City's use will be removed and the surface will be graded and left in a neat workman -like condition. 23 7. Grantor shall be indemnified and held harmless from claims of third persons arising from the use by City of the Temporary Easement Parcel in accordance with Section 14 of the MOU. 24 8. Grantor hereby specially warrants that they are the owners of the Temporary Easement Parcel and that 25 they have the right to grant City permission to enter upon and use the Temporary Easement Parcel. 9. This Agreement is the result of negotiations between the parties hereto. This Agreement and the MOU are intended by the parties as a final expression of their understanding with respect to the matters herein and is a complete and exclusive statement of the terms and conditions thereof. 698/015610-0002 8003473a3 a01J27J15 1 1 10. This Agreement shall not be changed, modified, or amended except upon the written consent of the parties hereto. 2 11. This Agreement and the MOU supersede any and all other prior agreements or understandings, oral or 3 written, in connection therewith. 12. Grantor, their assigns and successors in interest, shall be bound by all the terms and conditions 4 contained in this Agreement, and all the parties thereto shall be jointly and severally liable thereunder. 5 Dated: 6 7 9 By: 10 �1 City Attorney, City of La Quinta City Manager, City of La Quinta 11 GRANTOR: 12 KOHL'S DEPARTMENT STORES, INC., 13 a Delaware corporation 14 15 By: 16 Name: F\i(,kAv'd Do Srnkc-012_ 17 Title:— [acknowledgment on next page] 18 19 20 21 22 23 24 25 698/015610-0002 800347303 a01/27/15 -2- ACKNOWLEDGMENT State of Wisconsin ) County nukes n January 30,2015 before me, r° t (insert name and tie of eofficer) personaBy appeared RichardD. Schepp, who provedto me on the basis of satisfactory evidence t e the person whose name is subscribed to the within ' instrument anacknowledged to at he ' executed -ie same in is authorizedcapacity, an that by 'ssignature n e instrument e person, or e entity y upon behalf f which ie person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of Wisconsinat the foregoing paragraph is true and correct. WITNESS my handand official seal. f IV Signature (Seal) C °` �^c . 1 (City of La Quinta "City"), and 2 ONE ELEVEN LA QUINTA, ILLC, a California limited liablifty compppy 3 (Herein referred to as "Grantor") PROJECT: Adams Street Signal and Median Construction 4 PARCEL: Parcel 1 of Certificate of Compliance and Waiver of Parcel Map recorded April 29, 1994 as Instrument No. 178098 of Official Records, County of Riverside, State of California 5 APNt 643-080-026 TEMPORARY CONSTRUCTION AGREEMENT 6 ("Agreement") 7 right is hereby granted City to enter upon and use the land of Grantor in the Cit of La Quinta, y County of Riverside, State of California, described as a portion of Assessor's Parcel Number 643-080 Q26, highlighted on the map attached hereto, and made a part hereof, for all purposes necessary to s facilitate and accomplish the construction of the Adams Street Signal and Median Island improvement 9 along with the necessary parking lot improvements on Grantor's property for proper circulation. 2. The temporary construction easement, used during construction of the project consists of approximately 0.36 acres as designated on the attached map, referenced as Exhibit "A" ("Temporary Easement Parcel"). This Agreement is entered into concurrently with and pursuant to that certain Memorandum of Understanding by and among the City, Grantor, and Kohl's Department Store, dated of or about even date ("MOU"). 3. A thirty (30) day written notice shall be given to Grantor prior to using the rights herein granted. The rights herein granted may be exercised for four months (4) months (subject to month -to -month extensions if necessary for completion of commenced work that is within the scope of work for which this temporary construction easement is granted) from the thirty (30) day written notice, or until completion of said project, whichever occurs first; provided, however, the maximum duration of the temporary construction easement herein granted to the City is for a period ending one year from the date of this Agreement. Construction will be prosecuted with continued diligence. 4. It is understood that the City may enter upon Grantor's property where appropriate or designated for the purpose of getting equipment to and from the Temporary Easement Parcel as well as providing construction activities for matching the Grantor's property with the proposed street improvements. City agrees not to damage or leave debris on Grantor's property in the process of performing such activities, and if such damage occurs or debris is deposited, City shall repair the damage or remove the debris, as applicable, not later than the earlier of the completion of the work or the expiration of the easement granted herein. The right to enter upon and use Grantor's land includes the right to remove and dispose of real and personal property located within the Temporary Easement Parcel; provided, however, that no utility lines, pipes or other facilities located within the Temporary Easement Parcel shall be removed, damaged or I adversely affected by the City. If any interruption in utility services is unavoidable, the interruption shall be coordinated with the Grantor so as to cause the least inconvenience to occupants of the adjoining shopping center. 6� At the termination of the period of use of the Temporary Easement Parcel by City, but before its relinquishment to Grantor, debris generated by City's use will be removed and the surface will be graded and left in a neat workman -like condition. 7 Grantor shall be indemnified and held harmless from claims of third persons arising from the use by City of the Temporary Easement Parcel in accordance with Section 14 of the MOU. 8. Grantor hereby specially warrants that they are the owners of the Temporary Easement Parcel and that they have the right to grant City permission to enter upon and Use the Temporary Easement Parcel. 9. This Agreement is the result of negotiations between the parties hereto. This Agreement and the MO# are intended by the parties as a final expression of their understanding with respect to the matters herein and is a complete and exclusive statement of the terms and conditions thereof. 698/015610-0002 8003105.3 a01/27/15 l 2 3 4 5 6 7 8 9 10 ll | / 110. This Agreement shall not be changed, modified, or amended except upon the written consent of the parties hereto. 11. This Agreement and the MOU supersede any and all other prior agreements or understandings, oral or written, in connection therewith. 12. Grantor, their assigns and successors in interest, shall be bound by all the terms and conditions contained in this Agreement, and all the parties thereto shall be jointly and severally liable thereunder. Byt City Attorney, City of La Quinta ONE ELEVEN LA QUINTA, LLC 14 00 15 16 Title- a Title: 17 0| [acknowledgment onnext page] 18 19 20 21 22]& 23 24 N 101111111111 698/015610-000e 8003105.3 aoz/o/zs -2- a notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of 1�1Yf On V V C)1 before me, �� Y 1 f s � � Its (insert name and title of the officer) personally appeared C f-1 0 � �y who proved to me on the basis of satisfactory evidence to be the person(K) whose nam) is/a subscribed to the within instrument and ac owl - ged to me that lie/ </ executed the same in his/46/tbir authorized capacity(` ), and that by his/,W/thrir signaturek-o t the instrument the person , or the entity upon behalf of which the persons 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. i (Seal) Signatur - ti , 2 3 4 5 6 7 8 9 10' 11, 12 13 14 11 (City of La Quinta "City"), and (Herein referred to as " RES INC. a Delaware Cor aration PROJECT: Adams Street Signal and Median Construction PARCEL: Parcel 6 of PM 25865 APN: 643-080-004 TEMPORARY i f The right is hereby granted City to enter upon and use the land of Grantor in the City of La Quinta, County of Riverside, State of California, described as a portion of Assessor's Parcel Number 643-080 004, highlighted on the map attached hereto, and made a part hereof, for all purposes necessary to facilitate and accomplish the construction of the Adams Street Signal and Median Island improvements along with the necessary parking lot improvements on Grantor's property for proper circulation. The temporary construction easement, used during construction of the project consists of approximately 0.58 acres as designated on the attached map, referenced as Exhibit "A" ("Temporary Easement Parcel"). This Agreement is entered into concurrently with and pursuant to that certain Memorandum of Understanding by and among the City, Grantor, and One Eleven La Quinta LLC, dated of or about even' date ("MOU"). A thirty (30) day written notice shall be given to Grantor prior to using the rights herein granted. The rights herein granted may be exercised for four months (4) months (subject to month -to -month extensions if necessary for completion of commenced work that is within the scope of work for which this temporary construction easement is granted) from the thirty (30) day written notice, or until completion of said project, whichever occurs first; provided, however, the maximum duration of the temporary construction easement herein granted to the City is for a period ending one year from the date of this Agreement. Construction will be prosecuted with continued diligence. 15 4 1t is understood that the City may enter upon Grantor's property where appropriate or designated for the purpose of getting equipment to and from the Temporary Easement Parcel as well as providing 16 construction activities for matching the Grantor's property with the proposed street improvements. City agrees not to damage or leave debris on Grantor's property in the process of performing such activities, and if such damage occurs or debris is deposited, City shall repair the damage or remove the debris, as 17 applicable, not later than the earlier of the completion of the work or the expiration of the easement granted herein. 18 5 The right to enter upon and use Grantor's land includes the right to remove and dispose of real and, 19 personal property located within the Temporary Easement Parcel; provided, however, that no utility lines, pipes or other facilities located within the Temporary Easement Parcel shall be removed, damaged or adversely affected by the City. If any interruption in utility services is unavoidable, the interruption shall 20 be coordinated with the Grantor so as to cause the least inconvenience to occupants of the adjoining shopping center. 21 6. At the termination of the period of use of the Temporary Easement Parcel by City, but before its; 22 relinquishment to Grantor, debris generated by City's use will be removed and the surface will be graded and left in a neat workman -like condition. 23 7. Grantor shall be indemnified and held harmless from claims of third persons arising from the use by City of the Temporary Easement Parcel in accordance with Section 14 of the MOU. 24 8. Grantor hereby specially warrants that they are the owners of the Temporary Easement Parcel and that 25 they have the right to grant City permission to enter upon and use the Temporary Easement Parcel 9. This Agreement is the result of negotiations between the parties hereto. This Agreement and the MOU are intended by the parties as a final expression of their understanding with respect to the matters herein' and is a complete and exclusive statement of the terms and conditions thereof. 698/015610-0002 8003473.3 a01/27/15 1 1 10. This Agreement shall not be changed, modified, or amended except upon the written consent of the parties hereto. 2 11. This Agreement and the MOU supersede any and all other prior agreements or understandings, oral or 3 written, in connection therewith. 12. Grantor, their assigns and successors in interest, shall be bound by all the terms and conditions 4 contained in this Agreement, and all the parties thereto shall be jointly and severally liable thereunder. 5 Dated: klAAd,�- IS 6 7 8 APPROVED AS TO FOR 9 STONED COUNTERPART By:; 10 City Attorney, City of La Quinta 11 GRANTOR:'' 12 KOHL'S DEPARTMENT STORES, INC., 13 a Delaware corporation 14 SIGNED IN COUNTERPART Manager,City 15 Dy' Name: Etc, SL�I ' 16 �_ Title: S2-(-V-e 17 [acknowledgment on next page] 18' ` 19 20 21 22 23 24 25 698/015610-0002 8003473.3 a01/27/15 -2 10, This Agreement shall not be changed, modified, or amended except upon the written consent of the parties hereto. 2 11, This Agreement and the MOU supersede any and all other prior agreements or understandings, oral or 3 written, in connection therewith. 12. Grantor, their assigns and successors in interest, shall be bound by all the terms and conditions 4 contained in this Agreement, and all the parties thereto shall be jointly and severally liable thereunder. Dated: 8 APPROVED AS TO FORM: 9 -7- By: 10 City Attorney, City of La Quinta na i of La Quinta FRANK J, PEVA -K 11 GRANTOR: ATTEST TO TY MANAGER'S SIGNATURE: 12 KOHL'S DEPARTMENT STORES, INC., SUSAN MAYSELS, CITYtc 13 a Delaware corporation CITY OF LA QUINTA, C By: Name: ki( k��,, d f) 16 Title; [acknowledgment on next page] 20 2 _` 22 23 24 2 i • i A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of Wisconsin ) County Waukesha ) On January 30, 2015 before e, J �of ' (insert naive and (officer) personally appeared Richard D. Schepp, who proved to me can the basis of satisfactory evidence to e the person whose naive is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his 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 Wisconsin that the foregoing paragraph is true and correct. Signature ®� (Seal) i : r' A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Riverside ) On March 2,201,5 before me, SUSAN MAYSELS, Notary Public, personally appeared FRANK J. SPEVACEK 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 he executed the same in his authorized capacity, and that by his 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 California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature; DOCUMENT: SUSAN i A`ySBLS Commission * 2017258 Notary Public - California a«t: Riverside County M Comm xpes Apt 13, 2017 (notary seal) 1 (City of La Quinta "City"), and 2 ONE ELEVEN LA QUINTA. ILLC. a California limited liability company (Herein referred to as "Grantor") 3 PROJECT: Adams Street Signal and Median Construction PARCEL: Parcel 1 of Certificate of Compliance and Waiver of Parcel 4 Map recorded April 29, 1994 as Instrument No. 178098 of Official Records, County of Riverside, State of California 5 APN: 643-080-026 6 TEMPORARY CONSTRUCTION AGREEMENT ("Agreement") 1 The right is hereby granted City to enter upon and use the land of Grantor in the City of La Quinta, County of Riverside, State of California, described as a portion of Assessor's Parcel Number 643-080- Q26, highlighted on the map attached hereto, and made a part hereof, for all purposes necessary to facilitate and accomplish the construction of the Adams Street Signal and Median Island improvements along with the necessary parking lot improvements on Grantor's property for proper circulation. 2The temporary construction easement, used during construction of the project consists of approximately 0.36 acres as designated on the attached map, referenced as Exhibit "A" ("Temporary Easement Parcel"). This Agreement is entered into concurrently with and pursuant to that certain Memorandum of Understanding by and among the City, Grantor, and Kohl's Department Store, dated of or about even date ("MOU"). & A thirty (30) day written notice shall be given to Grantor prior to using the rights herein granted. The rights herein granted may be exercised for four months (4) months (subject to month -to -month extensions if necessary for completion of commenced work that is within the scope of work for which this temporary construction easement is granted) from the thirty (30) day written notice, or until completion of said project, whichever occurs first; provided, however, the maximum duration of the temporary construction easement herein granted to the City is for a period ending one year from the date of this Agreement. Construction will be prosecuted with continued diligence. 16 4. It is understood that the City may enter upon Grantor's property where appropriate or designated for the purpose of getting equipment to and from the Temporary Easement Parcel as well as providing construction activities for matching the Grantor's property with the proposed street improvements. City 17 agrees not to damage or leave debris on Grantor's property in the process of performing such activities, and if such damage occurs or debris is deposited, City shall repair the damage or remove the debris, as 18 applicable, not later than the earlier of the completion of the work or the expiration of the easement granted herein. 19 5 The right to enter upon and use Grantor's land includes the right to remove and dispose of real and personal property located within the Temporary Easement Parcel; provided, however, that no utility lines, 20 pipes or other facilities located within the Temporary Easement Parcel shall be removed, damaged or adversely affected by the City. If any interruption in utility services is unavoidable, the interruption shall 21 1 be coordinated with the Grantor so as to cause the least inconvenience to occupants of the adjoining shopping center. 22 6. At the termination of the period of use of the Temporary Easement Parcel by City, but ore its relinquishment to Grantor, debris generated by City's use will be removed and the surface will be graded 23 and left in a neat workman -like condition. 7. Grantor shall be indemnified and held harmless from claims of third persons arising from the use by City of the Temporary Easement Parcel in accordance with Section 14 of the MOU. 8. Grantor hereby specially warrants that they are the owners of the Temporary Easement Parcel and that they have the right to grant City permission to enter upon and use the Temporary Easement Parcel. 9. This Agreement is the result of negotiations between the parties hereto. This Agreement and the MOU are intended by the parties as a final expression of their understanding with respect to the matters herein and is a complete and exclusive statement of the terms and conditions thereof. 698/015610-0002 8003105.3 a01/27/15 1 2 1 3 4 5 1 6 1 7 10. This Agreement shall not be changed, modified, or amended except upon the written consent of the 1 parties hereto. 11. This Agreement and the MOU supersede any and all other prior agreements or understandings, oral or! written, in connection therewith. 12. Grantor, their assigns and successors in interest, shall be bound by all the terms and conditioIIIns contained in this Agreement, and all the parties thereto shall be jointly and severally liable thereunder. I Dated: .21 COUNTERPAR:r NIVAMROMer-IMMIP A "�JGRANTOR: 12 NE ELEVEN LA QUINTA, LLC 14 15 By: 7%zz�Ve By. Name: A A5 16 Name: TitleY Title: 17 [acknowledgment on next page] 18 19 20 21 22 23 24 25 698/015610-0002 8003105.3 a01/27/15 —2— 1 10.- This Agreement shall not be changed, modified, or amended except upon the written consent of the partieshereto- 2 11. This Agreement and the MOU supersede d all other prior agreements or understandings, oral or 3 written, in connection therewith. t.; Grantor, their assigns and successors in interest, h and by all the terms and conditions 4 contained in this Agreement, and all the parties thereto shall be Jointly and severally liable thereunder. 6 7 8 APPROVED AS TO FORM; 1 pity tt , ` of Arrda 11 LITEr, TO CITY MANAGER'S SIGNATURE: 12 GRMTOR: SUSAN MAYSELS, CITY Rl{- CZTY OF LA QUINTA, CA 13 a Calfforaft limited i 1 15 m 16len�e:_111 NL S bOO 10 Name:- 17 e: Tate. [acknowledgment on next i . 19 20 21 22 23 24 25 698/015610-0002 8003105.3 a01/27/15 -2 • • ti • s . _ State of California Countyof o w On v ( efore me, • Ott. I C� o.— Date Here Inssa9 N€arrsra and Title of the Officer personally appeared 0 C®i t d tFai�a�is} rat S�rinrt�i - who proved to me on the basis of satisfactory evidence to be the persono whose name( ;, is/ subscribed to the within instrument and acknowledged to me that he/sWWy executed the same in his/ /t ` authorized capacity , and that by his/oetDeir signatureW on the instrument the L• a -fit person( or the entity upon behalf of which the Co isio 1 Notary Public - Californiaperson(z) acted, executed the instrument. ." Riverside County :< t'Com. fires ct2, t I certify under PENALTY F JURY under the laws of the State of California that the foregoing paragraph is true and correct.' WITNESS my hand and official seal. Sinatur +� Place Notary Seal Above w. Signature of Nof ary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of AttachedDocument Title or Type of Document — _--- -- Document Date:, ;: �� Number of Pages: _ 9 -. El .....��:�V.a� w __ � _..�� Signer(s) Other Than Named Above'-.----,--,,., _ _- � . F Capacity(ies) Claimed by Signer(s) Signer's Name, w, w -- ----- -- __ Signer's Name: ❑ Corporate Officer — Title(s).,�,- ❑ Corporate Officer— Title(s): ❑ Individual = ®' [I Individual ®®' NO ❑ Partner — ❑ Limited ❑ General Top of thumb here ElPartner — ❑ Limited ❑ General Top of thumb here i ❑ Attorney in Fact ❑ Attorney in Fact [I Trustee ❑ Trustee ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: [IOther:._._. Signer Is Representing: Signer Is Representing w 0 2010 National Notary Association • NationalNotary org 1-800-US NOTARY (1-800-876-6827) Item #5907 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Riverside On March 2, 2015 before me, SUSAN MAYSELS, Notary Public, personally appeared FRANK J. SPEVACEK 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 he executed the same in his authorized capacity, and that by his 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 California that the foregoing paragraph is true and correct. Commission # 2017258 WITNESS my hand and official seal. a " Notary Public California Riverside County comm r 9„217 Signature: ' eat r (notary seal)