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HomeMy WebLinkAbout10/6/2004 - STAFF REPORTS (13) DATE: October 6, 2004 TO: City Council FROM: Director of Public Works/City Engineer PARCEL MAP NO. 30745 —WALMART RECOMMENDATION: It is recommended that the City Council approve Parcel Map No. 30745, prepared by Development Resources Consultants, Inc., representing American Realty Trust, Inc., a Georgia corporation, to subdivide property located at the "Skypoint Center", in Section 20, Township 4 South, Range 5 East. SUMMARY: Development Resources Consultants, Inc., representing American Realty Trust, Inc., a Georgia corporation, has prepared an eight parcel Parcel Map for subdivision of property located at the "Skypoint Center", in Section 20, Township 4 South, Range 5 East, This Parcel Map redevelops the "Skypoint Center", a previous development approved as Tract Map 19544, and facilitates development of the "Destination Ramon" project which includes construction of a "Super" Walmart center and other various retail and commercial uses. BACKGROUND: Development Resources Consultants, Inc., representing American Realty Trust, Inc., a Georgia corporation, requests that the property located at the "Skypoint Center", in Section 20, Township 4 South, Range 5 East, be subdivided into eight parcels for construction of a new major retail shopping center, consisting of a new "Super" Walmart, gas station, convenience mart, and another four retail commercial pads. This development completely redevelops an older, undeveloped project identified as "Skypoint Center". This area was originally proposed for another commercial use, and Tract Map 19544 was previously approved and recorded which created the parcels that exist today, including the streets named Skypoint Drive North, Skypoint Drive West, and Skypoint Drive East. This area is located between Ramon Road and Sunny Dunes Road, and between San Luis Rey Drive and Crossley Road. Tentative Parcel Map 30745 includes abandonment of the public rights-of-way for Skypoint Drive North, Skypoint Drive West, and Skypoint Drive East in accordance with Section 66445 0) of the Government Code. The developer has coordinated with all affected utility companies, and approval of the abandonment of these rights-of-way were received, which is accompanied by the relocation and/or removal of existing utilities due to redevelopment of the area for the Destination Ramon project. At its meeting of March 24, 2004, the Planning Commission recommended approval of Tentative Parcel Map No. 30745, including the findings necessary to abandon Skypoint Drive North, Skypoint Drive West, and Skypoint Drive East. Tentative Parcel Map No. 30745 was subsequently approved by the City Council, subject to conditions, on April 14, 2004. Parcel Map 30745 October 6,2004 Page 2 In addition to a standard Subdivision Improvement Agreement, included as part of the City's approval of Parcel Map 30745 is an "Abandonment Agreement" which secures the costs of removing all of the abandoned street improvements and underlying utilities. This agreement provides for the City's ability to enter onto the property in the event the Destination Ramon project does not proceed within two years following approval and recordation of Parcel Map 30745. Once Parcel Map 30745 is recorded, the public rights- of-way for Skypoint Drive North, Skypoint Drive West, and Skypoint Drive East are abandoned; however, the existing streets remain until such time as the developer removes them as part of the construction related to the Destination Ramon project. The terms of the Abandonment Agreement will allow the City to remove the abandoned streets and return the area into a vacant, undeveloped parcel without leaving what would be considered private streets unmaintained by the City. It has been determined that required conditions have been satisfied, that Parcel Map No. 30745 is in substantial conformance with the approved Tentative Parcel Map, and that Parcel Map No. 30745 is ready for City Council approval. SUBMITTED: DAVID J. BARAKIAN Director of Public Works/City Engineer APPROVED: X" DAVID H. READY City Manager ATTACHMENTS: 1. Resolution 2. Map 3. Subdivision Agreement 4. Abandonment Agreement IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE. STATE OF CALIFORNIA SHEET 1 OF z PARCEL MAP NO. 30745 RECORDERSY CERTIFICATE BOP BEING A SUBDIVISION OF LOTS 1 THROUGH 10, INCLUSIVE, AND LETTERED LOTS "T— u.W eDa:—q PAMCEL MAPS, A THROUGH E. INCLUSIVE, OF TRACT NO. 19544, AS SHOWN BY MAP ON FILE AT PAGES_AT ME TEw1EN DE ME IN BOOK 142, PAGES 79 AND 80. OF MAPS, RECORDS OF SAID COUNTY, SAID MY cLEwc CRY Or PAW RUI STATE, AS AMENDED BY CERTIFICATION OF CORRECTION RECORDED JANUARY NC, 23. 1986 AS INSTRUMENT NO. 16924 OF OFFICIAL RECORDS. „T, WMREN W.WWQ%A.LS.CUM .11.EMCI COLOR,REPOROM-AS¢SOR wmA OEMEL ENLT RESOURCE D0NSIILTANT%LNG OATS OF BURNEY UNNUARY,2EA3 BYBwNN.I wxnHTm er DEPUTY UT, EERY NAPWAL ME.1 OWNER'S STATEMENT SURVEYOR'S STATEMENT TPE U,Un➢SUIEE M µEMEA AS OMFR IH HE Cf NE LAND 9i0MN AN VI MM M ACCgI°µCE MM Mls xM WAS NUCIARm BY N[M VNVER NY OWECTW.AN015 BASED VP q1 AINFW 9JRVEY IN REWCOMW CG TINTS MAP AXB SLUEN,NINSWME NAN WONN BURN TIE AS RILL DdOpt TINE PBRSUMT i0 REW i OF MCMN NOR R BRIN ME WIN LLC M JW VARYNURS OF THE WRONd`N MAP AC!ARE LEGAL MgNµ25 AT ME NO.BCONS OR CLAIM 1.TIME E.PAST 1,dMS.SEEWO BF lNI UNL CONE IWNLRBE ACC MAT ALL NWVNENOU S M OR NE CN MONUMENT A ANB OCC°PY ME MM ME MUCAM.ME q1 NE VNI. 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WARREN W.IIIII JL LS.7M DE111OPMENT RESOURCE CONSULTANTS 6 2S OF BEARINGS DATE OF SIII JANUUMY,2003 CROSSWY ROAD Pot TRACT NO..N154 FlNED INTMSEEN 142.UPA{5 i0 µ0 W.OF NAG:,DE1X0 NW,U.H"W. UNE i.1D1E SURVEYOR'S NOTES UxE eEARlxc .w E �Divscu um CMTUNS"Al AMC moss..IN THE DlsnxrnvE [� • wacA,ES NO 4IXIU4wi As NDCOEOPENING cunK iANF jj r IP.TAG RD I....GO IFA➢AND TAG.,,A S,S sob'6Ei cURK OELiA IN CONdETT i0 RECER DER'Ai ALL DWNOAW CONN RS Cx . (SIT SO I"IP.i To 'IS]0.AT m LEAD µD TAc SOARED"LS 70.b'CRT IN C] O]'35' (111j G AAA CWGE2 t0 BE SR AL ALL RAIIRl CWNERS C+ (PI) n CC OI MIND 6RAES DISK STOOPED"NI/+.9EC 20'PER IN. 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A GEORGIA CORPORATION TABLE OF CONTENTS 1.Construction Obligations . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.1 Works of Improvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.2 Other Obligations Referenced in Conditions of Tentative Map Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.3 Intent of Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.4 Survey Monuments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.5 Performance of Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.6 Changes in the Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.7 Defective Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.8 No Warranty by City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.9 Authority of the City Engineer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.10 Documents Available at the Site . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.11 Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.12 Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.13 Suspension of Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.14 Final Acceptance of Works of Improvement . . . . . . . . . . . . . . . . . . . . . . . 3 2. Time for Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2.1 Commencement and Completion Dates . . . . . . . . . . . . . . . . . . . . . . . . . 4 2.2 Phasing Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2.3 Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2.4 Continuous Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2.5 Reversion to Acreage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2.6 Time of the Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3. Labor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3.1 Labor Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3.2 Nondiscrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3.3 Licensed Contractors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3.4 Workers' Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 4. Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 4.1 Required Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 4.2 Form of Security Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 4.3 Subdivider's Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 4.4 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 4.5 Release of Security Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 5. Cost of Construction and Provision of Inspection Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 5.1 Subdivider Responsible for All Related Costs of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... -3. 8 5.2 Payment to City for Cost of Related Inspection and Engineering Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 6. Acceptance of Offers of Dedication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 7. Warranty of Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 8. Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 8.1 Remedies Not Exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 8.2 City Right to Perform Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 8.3 Attorney's Fees and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 9. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10 General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10.1 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10.2 No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10.3 Entire Agreement; Waivers and Amendments . . . . . . . . . . . . . . . . . . . . 10 11. Corporate Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 ii SUBDIVISION IMPROVEMENT AGREEMENT THIS SUBDIVISION IMPROVEMENT AGREEMENT (this "Agreement") is entered into this day of , 2004, by and between the CITY OF PALM SPRINGS, a municipal corporation of the State of California ("CITY"), and AMERICAN REALTY TRUST, INC., a Georgia corporation ("Subdivider"). RECITALS A. Subdivider is the groundlessee of a portion of land, and has obtained approval of a subdivision map for Parcel Map No. 30745, located in the City of Palm Springs, County of Riverside, State of California (the "Property"), as described on Exhibit "A"."The map contains conditions of approval for the development of the Property (the "Conditions") as described on Exhibit "B". B. Pursuant to the Conditions, Subdivider, by separate instrument, has offered dedication to the City of Palm Springs right-of-way for a bus-turn out, and an easement for bikepath and sidewalk purposes; and City desires to accept said public dedications and certain other improvements as described in this Agreement. C. Subdivider has delivered to City and City has approved plans and specifications and related documents for certain "Works of Improvement" (as hereinafter defined) which are required to be constructed and installed in order to accommodate the development of the Property. D. Subdivider's agreement to construct and install the Works of Improvement pursuant to this Agreement and its public dedications and other improvements, as described in this Agreement, are a material consideration to City in approving the parcel map for the Property and permitting development of the Property to proceed. COVENANTS Based upon the foregoing Recitals which are incorporated herein by reference and in consideration of City's approving the Map for the Property and permitting development of the Property to proceed, Subdivider agrees to timely perform all of its obligations as set forth herein. 1. Construction Obligations. 1.1 Works of Improvement. Subdivider agrees, at its sole cost and expense, to construct or install or cause to be constructed or installed the street, drainage, domestic water, sanitary sewer and other improvements (herein sometimes collectively referred to as the "Works of Improvement"), as the same may be supplemented and revised from time to time as set forth herein (said plans and specifications, together with all related documents, are referred to herein as the "Plans"). The estimated construction cost for the Works of Improvement is $190,000.00. 1.2 Other Obligations Referenced in Conditions of Tentative Map Approval. In addition to the foregoing, Subdivider shall satisfy all of the conditions of approval on the /, ) � Tentative Map for the Property. The conditions of approval associated with the Tentative Map are included as Exhibit "B" attached hereto. 1.3 Intent of Plans, The intent of the Plans referenced in Section 1.1 is to prescribe a complete work of improvement which Subdivider shall perform or cause to be performed in a manner acceptable to the City Engineer (or his/her designee) and in full compliance with all codes and the terms of this Agreement. Subdivider shall complete a functional or operable improvement or facility, even though the Plans may not specifically call out all items of work required for the contractor to complete its tasks, incidental appurtenances, materials, and the like. If any omissions are made or information necessary to carry out the full intent and meaning of the Plans, Subdivider or its contractor shall immediately notify its design engineer who will seek approval of the City Engineer for furnishing of detailed instructions. In the event of any doubt or question arising regarding the true meaning of any of the Plans, reference shall be made to the City Engineer whose decision thereon shall be final. Subdivider recognizes that the Plans consist of general drawings. All authorized alterations affecting the requirements and information given on the Plans shall be in writing and approved by the City Engineer. The Plans shall be supplemented by such working or shop drawings as are necessary to adequately control the work. Without the City Engineer's prior written approval, no change shall be made by Subdivider or Subdivider's contractor to any plan, specification, or working or shop drawing after it has been stamped as approved. 1.4 Survey Monuments. Before final approval of street improvements, Subdivider will place survey monument(s) as shown on the Map in accordance with the provisions of the State Subdivision Map Act and the Subdivision Ordinance of the City of Palm Springs. Subdivider shall provide security for such obligation as provided in Section 4.1(a)(iii) and, after setting the monument(s), Subdivider shall furnish the City Engineer of the City of Palm Springs written notice of the setting of said monument(s) and written proof of having paid the engineer or surveyor for the setting of said monument(s). 1.5 Performance of Work. Subdivider shall furnish or cause to be furnished all materials, labor, tools, equipment, utilities, transportation, and incidentals required to perform Subdivider's obligations under this Agreement. 1.6 Changes in the Work. The City Engineer, without invalidating this Agreement and without notification to any of the sureties or financial institutions referenced in Paragraph 4, may order extra work or may make changes by altering or deleting any portion of the Works of Improvement as specified herein or as deemed necessary or desirable by the City Engineer as determined necessary to accomplish the purposes of this Agreement and to protect the public health, safety, or welfare. The City Engineer shall notify Subdivider or Subdivider's contractor in writing (by Correction Notice) at the time a determination has been made to require changes in the work. No field changes performed or proposed by Subdivider or its contractor shall be binding on City unless approved in writing by the City Engineer. 1.7 Defective Work. Subdivider shall cause its contractor to repair, reconstruct, replace, or otherwise make acceptable any work found by the City Engineer to be defective. 2 / 1.8 No Warranty by City. The Plans for the Works of Improvement have been prepared by or on behalf of Subdivider or its consultants or contractors, and City makes no representation or warranty, express or implied, to Subdivider or to any other person regarding the adequacy of the Plans or related documents. 1.9 Authority of the City Engineer. In addition to the authority granted to the City Engineer elsewhere in this Agreement, the City Engineer shall have the authority to decide all questions which may arise as to the quality and acceptability of materials furnished and work performed, and all questions as to the satisfactory and acceptable fulfillment of the terms of this Agreement by Subdivider and Subdivider's contractor. 1.10 Documents Available at the Site. Subdivider shall cause its contractor to keep a copy of all approved Plans at the job site and shall give access thereto to the City's inspectors and engineers at all times. 1.11 Inspection. Subdivider shall have an authorized representative on the job site at all times during which work is being done who has full authority to act for Subdivider, or its design engineer, and Subdivider's contractor(s) regarding the Works of Improvement. Subdivider shall cause its contractor to furnish the City with every reasonable facility for ascertaining whether or not the Works of Improvement as performed are in accordance with the requirements and intent of this Agreement, including the Plans. If the City inspector requests it, the contractor at any time before acceptance of the Works of Improvement shall remove or uncover such portions of the finished work as may be directed which have not previously been inspected. After examination, the contractor shall restore said portions of the work to the standards required hereunder. Inspection or supervision by the City shall not be considered as direct control of the individual workmen on the job site. City's inspector shall have the authority to stop any and all work not in accordance with the requirements contained or referenced in this Agreement. The inspection of the work by City shall not relieve Subdivider or the contractor of any obligations to fulfill this Agreement as herein provided, and unsuitable materials orwork may be rejected notwithstanding that such materials or work may have been previously overlooked or accepted. 1.12 Compliance With Law. In addition to the express provisions of this Agreement and the Plans, Subdivider shall cause construction of the Works of Improvement to be completed in accordance with all other applicable federal, state, and local laws, ordinances, rules and regulations. 1.13 Suspension of Work. City Engineer shall have authority to order suspension of the work for failure of the contractor to comply with law pursuant to Section 1.11. In case of suspension of work for any cause whatever, Subdivider and its contractor shall be responsible for all materials and shall store them properly if necessary and shall provide suitable drainage and erect temporary structures where necessary. 1.14 Final Acceptance of Works of Improvement. After Subdivider's contractor has completed all of the Works of Improvement, Subdivider shall then request a final inspection of the work. If items are found by the inspector to be incomplete or not in compliance with this Agreement or any of the requirements contained or referenced herein, City will inform the contractor of such items. After the contractor has completed these items, the procedure 3 shall then be the same as specified above for the contractor's initial request for final inspection. If items are found by City's inspector to be incomplete or not in compliance after two (2) "final" inspections, City may require the contractor, as a condition to performing further field inspections, to submit in writing a detailed statement of the work performed subsequent to the date of the previous inspection which was found to be incomplete or not in compliance at that time. No inspection or acceptance pertaining to specific parts of the Works of Improvement shall be construed as final acceptance of any part until the overall final acceptance by City is made. Final acceptance shall not constitute a waiver by City of defective work subsequently discovered. The date on which the Works of Improvement will be considered as complete shall be the date of the Notice of Acceptance. 2. Time for Performance. 2.1 Commencement and Completion Dates. Subject to Section 2.2 and 2.3 below, Subdivider shall (i) commence with construction and installation of the Works of Improvement thirty (30) days following City's approval of the Plans ("Commencement Date"); and (ii) complete or cause to be completed all of the Works of Improvement two 2 years after the Commencement Date. Extensions of time for completion of the Works of Improvement may be granted upon approval by the City Engineer or his designee. Extension of time may be granted upon mutual agreement of the City Engineer and Subdivider, either verbally or in writing, as required by the City Engineer or his designee. 2.2 Phasing Requirements. Notwithstanding the provisions of Section 2.1, City reserves the right to control and regulate the phasing of completion of specific Works of Improvement as required to comply with applicable City ordinances, regulations, and rules relating to the timely provision of public services and facilities. In addition to whatever other remedies City may have for Subdivider's failure to satisfy such phasing requirements, as the same now exist or may be amended from time to time, Subdivider acknowledges City's right to withhold the issuance of further building permits on the Property until such phasing requirements are satisfied. Prior to issuance of building permits, Subdivider shall provide satisfactory evidence that all applicable requirements that are a condition to issuance of building permits have been satisfied. Such requirements may include the payment of fees, construction of improvements, or both. Final inspections or issuance of Certificates of Occupancy may be withheld from the Subdivider by the City, if, upon a determination by the City Engineer or his designee, completion of specific Works of Improvements or other requirements associated with the development of the Property have not been completed to his satisfaction. 2.3 Force Maieure. Notwithstanding the provisions of Section 2.1, Subdivider's time for commencement and completion of the Works of Improvement shall be extended for the period of any enforced delay caused due to circumstances beyond the control and without the fault of Subdivider, including to the extent applicable adverse weather conditions, flood, earthquakes, strikers, lockouts, acts or failures to act of a public agency (including City), required changes to the scope of work required by City, and similar causes; provided, however, that the period of any enforced delay hereunder shall not include any period longer than five (5) days prior to City's receipt of a written notice from Subdivider or its Contractor detailing the grounds for Subdivider's claim to a right to extend its time for performance hereunder. City Engineer shall evaluate all claims to Force Majeure and his decision shall be final. 2.4 Continuous Work. After commencement of construction of the Works of Improvement(or separate portion thereof), Subdivider shall cause such work to be diligently pursued to completion, and shall not abandon the work for a consecutive period or more than thirty (30) days, events of Force Majeure excepted. 2.5 Reversion to Acreage. In addition to whatever other rights City may have due to Subdivider's failure to timely perform its obligations hereunder, Subdivider recognizes that City reserves the right to revert the Property to acreage subject to the limitations and requirements set forth in California Government Code Sections 66499.11-66499.20-3/4. In this regard, Subdivider agrees that if the Works of Improvement have not been completed on or before the later of two (2) years from the date of this Agreement or within the time allowed herein, whichever is the later, and if City thereafter initiates proceedings to revert the Property to acreage, pursuant to Government Code Section 66499.16 Subdivider hereby consents to reversion and agrees that any improvements made by or on behalf of Subdivider shall not be considered in determining City's authority to revert the Property to acreage. 2.6 Time of the Essence. Time is of the essence of Subdivider's performance of all of its obligations under this Agreement, 3. Labor. 3.1 Labor Standards. Subdivider shall be responsible for causing all contractors and subcontractors performing any of the Works of Improvement to comply with all applicable federal and state labor standards, including to the extent applicable the prevailing wage requirements promulgated by the Director of Industrial Relations of the State of California Department of Labor. 3.2 Nondiscrimination. Subdivider agrees that no contractor or subcontractor performing any of the Works of Improvement shall discriminate against any employee or prospective employee with respect to such work in hiring, promotion, seniority, or any other terms and conditions of employment on the grounds of race, creed, color, national origin, ancestry, religion, sex, or marital status. 3.3 Licensed Contractors. Subdivider shall cause all of the Works of Improvement to be constructed by contractors and subcontractors with valid California Contractors' licenses for the type of work being performed. 3.4 Worker's Compensation. Subdivider shall cause every contractor and subcontractor performing any of the Works of Improvement to carry Workers'Compensation Insurance as required by the Labor Code of the State of California and shall cause each such contractor and subcontractorto submit to City a Certificate of Insurance verifying such coverage prior to such contractor or subcontractor entering onto the job site. 5 4. Securit . 4.1 Required Security. (a) At the time Subdivider executes this Agreement, Subdivider shall furnish to City the following bonds, letters of credit, instruments of credit (assignment of deposit account) or other security acceptable to City in its sole and absolute discretion and satisfying the requirements of the applicable provisions of this Section 4 below (hereinafter "Security Instruments"): (i) A Security Instrument securing Subdivider's faithful performance of all of the Works of Improvement ("Faithful Performance Security Instrument"), in the amount of $190,000.00 equal to 100% of the estimated construction cost referenced in Section 1.1. (ii) A Security Instrument guaranteeing the payment to contractors, subcontractors, and other persons furnishing labor, materials, and/or equipment ("Labor and Materials Security Instrument") with respect to the Works of Improvement in an amount equal to $95,000.00 equal to 50% of the estimated construction cost referenced in Section 1.1. (iii) A Security Instrument guaranteeing the payment of the cost of setting monuments as required in Section 1.4 in the amount of$3,000.00 equal to 100%of the cost thereof. This Agreement shall not be effective for any purpose until such Security Instruments are supplied to and approved by City in accordance herewith. (b) Required Security Instrument for Maintenance and Warranty. Prior to the City Council's acceptance of the Works of Improvement and recordation of a Notice of Completion, Subdivider shall deliver a Security Instrument warranting the work accepted for a period of one (1) year following said acceptance ("Maintenance and Warranty Security Instrument"), in the amount of$28,500.00 equal to 15% of the estimated construction cost set forth in Section 1.1 or a suitable amount determined by the City Engineer. 4.2 Form of Security Instruments. All Security Instruments shall be in the amounts required under Section 4.1 (a) or 4.1(b), as applicable, shall meet the following minimum requirements and otherwise shall be in a form provided by City or otherwise approved by the City Attorney: (a) Bonds. For Security Instruments provided in the form of bonds, any such bond must be issued and executed by an insurance company or bank authorized to transact surety business in the State of California. Any insurance company acting as surety shall have a minimum rating of A-IX, as rated by the current edition of Best's Key Rating Guide published by A.M. Best's Company, Oldwick, New Jersey, 08858.Any bank acting as surety shall have a minimum rating of AA, as rated by Moody's or Standard & Poor's. (b) Letters of Credit. For Security Instruments which are letters of credit, any letter of credit shall be an original separate unconditional, irrevocable, negotiable and transferable commercial letter of credit issued by a financial institution with offices in the State of California acceptable to City. Any such letter of credit shall specifically permit City to draw on same by unilateral certification of the City Engineer of the City that Subdivider is in 6 default under its payment or performance obligations hereunder or in the event Subdivider fails to deliver a replacement letter of credit not less than thirty(30)days prior to the date of expiration of any such letter of credit and shall further be subject to the provisions of Section 4.4. (c) Instrument of Credit. For Security Instruments which are Instruments of Credit, any Instrument of Credit shall be an assignment of deposit account assigning as security to City all of Subdivider's interest in funds on deposit in one or more bank accounts with financial institutions acceptable to City. (d) General Requirements for all Security Instruments. (i) Payments under any Security Instruments shall be required to be made (and, with respect to bonds, litigation shall be required to be instituted and maintained) in the City of Palm Springs, State of California (and the Security Instrument shall so provide). (ii) Each Security Instrument shall have a minimum term of one (1) year after the deadline for Subdivider's completing the Works of Improvement, in accordance with Section 2.1 (other than Instruments of Credit, which shall have no defined term or expiration date). (iii) Each Security Instrument shall provide that changes may be made in the Works of Improvement pursuant to the terms of this Agreement without notice to any issuer or surety and without affecting the obligations under such Security Instrument. 4.3 Subdivider's Liability. While no action of Subdivider shall be required in order for City to realize on its security under any Security Instrument, Subdivider agrees to cooperate with City to facilitate City's realization under any Security Instrument, and to take no action to prevent City from such realization of any Security Instrument. Notwithstanding the giving of any Security Instrument or the subsequent expiration of any Security Instrument or any failure by any surety or financial institution to perform its obligations with respect thereto, Subdivider shall be personally liable for performance under this Agreement and for payment of the cost of the labor and materials for the improvements required to be constructed or installed hereby and shall, within ten(10)days after written demand therefor, deliverto City such substitute security as City shall require satisfying the requirements in this Section 4. 4.4 Letters of Credit. (a) In the event a letter of credit is given pursuant to Section 4.2(b), City shall be entitled to draw on any such letter of credit if a replacement letter of credit (expiring in not less than one (1) year, unless City agrees to a lesser term in City's sole and absolute discretion) is not delivered not less than thirty(30) days prior to the expiration of the original letter of credit, such substitute letter of credit being in the same amount and having the terms and conditions as the initial letter of credit delivered hereunder, issued by a financial institution acceptable to City as of the date of delivery of the replacement letter of credit. (b) In the event of draw by the City on a letter of credit, the City may elect, in its sole and absolute discretion, to apply any such funds drawn to the obligations secured by such letter of credit or to hold such funds in an account under the control of the City, with no interest accruing thereon for the benefit of the Subdivider. If the City elects to hold the funds 9 // in an account pursuant to the foregoing, City may thereafter at any time elect instead to apply such funds as provided in the foregoing. Subdivider agrees and hereby grants City a security interest in such account to the extent required for City to realize on its interests therein and agrees to execute and deliver to City any other documents requested by City in order to evidence the creation and perfection of City's security interest in such account. 4.5 Release of Security Instruments. (a) City shall release the Faithful Performance Security Instrument and Labor and Materials Security Instrument when all of the following have occurred: (i) Subdivider has made written request for release and provided evidence of satisfaction of all other requirements in this Section 4.5; (ii) the Works of Improvement have been accepted; (iii)Subdivider has delivered the Maintenance and Warranty Security Instrument; and (iv) subject to the following sentences after passage of the time within which lien claims are required to be made pursuant to Article 3 (commencing with Section 3114) of Chapter 2 of Title 15 of Part IV of Division 3 of the California Civil Code. If lien claims have been timely filed, City shall hold the Labor and Materials Security Instrument until such claims have been resolved, Subdivider has provided a statutory bond, or otherwise as required by applicable law. (b) City shall release the Maintenance and Warranty Security Instrument upon Subdivider's written request upon the expiration of the warranty period, provided no claims are outstanding at that time regarding defective work. 5. Cost of Construction and Provision of Inspection Service. 5.1 Subdivider Responsible for All Costs of Construction. Subdivider shall be responsible for payment of all costs incurred for construction and installation of the Works of Improvement. In the event Subdivider is entitled to reimbursement from City for any of the Works of Improvement, such reimbursement shall be subject to a separate Reimbursement Agreement to be entered into between Subdivider and City prior to construction of the works. 5.2 Payment to City for Cost of Related Inspection and Engineering Services. Subdivider shall compensate City for all of City's costs reasonably incurred in having its authorized representative make the usual and customary inspections of the Works of Improvement. In addition, Subdivider shall compensate City for all design, plan check, evaluating any proposed or agreed-upon changes in the work. The procedures for deposit and payment of such fees shall be as established by the City Council. In no event shall Subdivider be entitled to additional inspections or a final inspection and acceptance of any of the Works of Improvement until all City fees and charges have been fully paid, including without limitation, charges for applicable penalties and additional required inspections. 6. Acceptance of Offers of Dedication. The City Council shall pass as appropriate resolution or resolutions accepting all offers of dedication shown on the Map for the 8 ql�/� Property, with acceptance to become effective upon completion and acceptance by City of the Works of Improvement. Such resolution(s)shall authorize the City Clerk to execute the Certificate made a part of the Map regarding said acceptance of the offer of dedication. 7. Warranty of Work. Subdivider shall guarantee all Works of Improvement against defective materials and workmanship for a period of one (1) year from the date of final acceptance. If any of the Works of Improvement should fail or prove defective within said one(1)year period due to any reason other than improper maintenance, or if any settlement of fill or backfill occurs, or should any portion of the Works of Improvement fail to fulfill any requirements of the Plans, Subdivider, within fifteen (15) days after written notice of such defects, or within such shorter time as may reasonably be determined by the City in the event of emergency, shall commence to repair or replace the same together with any other work which may be damaged or displaced in so doing. Should Subdivider fail to remedy defective material and/or workmanship or make replacements or repairs within the period of time set forth above, City may make such repairs and replacements and the actual cost of the required labor and materials shall be chargeable to'and payable by Subdivider. The warranty provided herein shall not be in lieu of, but shall be in addition to, any warranties or other obligations otherwise imposed by law. 8. Default. 8.1 Remedies Not Exclusive. In any case where this Agreement provides a specific remedy to City for a default by Subdivider hereunder, such remedy shall be in addition to, and not exclusive of, City's right to pursue any other administrative, legal, or equitable remedy to which it may by entitled. 8.2 City Right to Perform Work. In addition to whatever other rights or remedies it may have for Subdivider's default hereunder, in the event Subdivider shall fail to timely perform any work required to be performed under this Agreement and such failure shall continue for a period of twenty(20) days after receipt of written notice of default from City, or thereafter Subdivider shall fail to diligently and continuously pursue the cure of any such default to completion, City shall have the right to enter into the Property and perform any of the uncompleted work by force account or contract or both and thereupon recover from Subdivider or any Security Instrument, or both,the full cost and expense thereby incurred by City, 8.3 Attorney's Fees and Costs. In the event that Subdivider fails to perform any obligation under this Agreement, Subdivider agrees to pay all costs and expenses incurred by City in securing performance of such obligations, including costs of suit and reasonable attorney's fees. In the event of any dispute arising out of Subdivider's performance of its obligations under this Agreement or under any of the Security Instruments referenced herein, the prevailing party in such action, in addition to any other relief which may be granted, shall be entitled to recover its reasonable attorney's fees and costs. Such attorney's fees and cost shall include fees and costs on any appeal, and in addition a party entitled to attorney's fees and costs shall be entitled to all other reasonable costs incurred in investigating such action, taking depositions and discovery, retaining expert witnesses, and all other necessary and related costs with respect to the litigation. All such fees and costs shall be deemed to have accrued on commencement of the action and shall be enforceable whether or not the action is prosecuted to judgment. 9 9. Indemnity. Subdivider agrees to indemnify, defend, and hold harmless City and City's officers, employees, and agents from and against any and all claims, liabilities, losses, damages, causes of action, and obligations arising out of Subdivider's failure to perform the construction and installation of the Works of Improvement in accordance with the requirements contained or referenced in this Agreement. Said indemnity obligation shall apply to personal injury, death, property damage, economic loss, and any other monetary damage or penalty to which City may be subjected, including without limitation, attorney's fees and costs and the costs of realizing on any Security Instrument provided by Subdivider pursuant to the terms hereof. Such indemnity obligation shall not extend to any loss resulting from City's sole negligence or willful misconduct. 10. General Provisions. 10.1 Successors and Assigns. This Agreement shall be binding upon all successors and assigns to Subdivider's right, title, and interest in and to the Property and any portion thereof. 10.2 No Third Party Beneficiaries. This Agreement is intended to benefit only the parties hereto and their respective successors and assigns. Neither City nor Subdivider intend to create any third party beneficiary rights in this Agreement in any contractor, subcontractor, member of the general public, or other person or entity. 10.3 Entire Agreement: Waivers and Amendments. This Agreement integrates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements between the parties with respect to all or part of the subject matter hereof, except as may be expressly provided herein. All waivers of the provisions of this Agreement must be in writing and signed by an authorized representative of the party to be charged, and all amendments hereto must be in writing and signed by the appropriate representatives of both parties. 11. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant the (1) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into of this Agreement does not violate any provisions of any other Agreement to which said party is bound. (Signatures on Next Page) 10 IN WITNESS WHEREOF, the parties hereto have executed this Subdivision Improvement Agreement as of the date first above written. ATTEST: CITY OF PALM SPRINGS, CALIFORNIA By Patricia A. Sanders, City Clerk David H. Ready, City Manager RECOMMENDED BY: City Engineer SUBDIVIDER: AMERICAN REALTY TRUST, INC., a Georgia corporation (Check One: , individual, _partnership, X corporation) By: L agl Signature By: Dan S. Allred, Vice President Name and Title Mailing Address: 1800 Valley View Lane Dallas, TX 75234 11 ALL-PURPOSE ACKNOWLEDGMENT State of Cif.m.w`� CAPACITY CLAIMED BY SIGNER County of ❑ INDIVIDUAL(S) ❑ CORPORATE On�ep 2 ,ZeL�1 before me �1^` OFFICER(S)ftu.�O vt `Lf�e v �l nbT�� Q4 Date Name, Title of Officer l— TITLE(S) —� personally appeared )A 5. kxN Ce C' , ❑ PARTNER(S) NAME(S) OF SIGNER(S) ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑personally known to me-OR- ❑ SUBSCRIBING WITNESS ❑ GUARDIAN/CONSERVATOR proved to me on the basis of satisfactory evidence to be the perso whose name o ❑ OTHER t are subscribed to the within instrument and acknowledged to me at h sh /they executed the same in ss'lier/their authorized capacity(.Iea), and that by 's/ r/their signalurey) on the instrument the person(m or the entity upon behalf of which the persons(I acted,executed the instrument. SIGNER IS REPRESENTING: Witness and tcLa eal. - JA( Qssion RAN—GEL13861 Commission yf 1388V3 z z Q Notry Public-California n Riverside County Stg u e o So ary My Comm.Expires Dec 3,2006 ATTENTION NOTARY: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to unauthorized docurnent. THIS CERTIFICATE Title or Type of Document `az.,_' .t�a p y� CA\_,f)n t���r Aa MUST BE ATTACHED TO THE DOCUMENT Number of Pages 1 1 DATE of DOCUMENT DESCRIBED AT RIGHT: Signer(s) Other Than Named Above EXHIBIT "A" TENTATIVE PARCEL MAP 30745 LEGAL DESCRIPTION In the City of Palm Springs, County of Riverside, State of California, being a subdivision of Lots 1 through 10, inclusive, and lettered Lots A through E , inclusive, of Tract No 19544, as shown by Map on file in Book 142, Pages 79 and 80, of Maps, Records of said County, said State, as amended by certification of correction recorded January 23, 1986, as instrument no. 16924 of official records. EXHIBIT'B" TENTATIVE PARCEL MAP 30745 CONDITIONS OF APPROVAL FAI 16-1 RESOLUTION NO. EXHIBIT A TENTATIVE PARCEL MAP 30745 DESTINATION RAMON, LLC. 5601 RAMON ROAD APRIL 14, 2004 CONDITIONS OF APPROVAL Before final acceptance of the project, all conditions listed below shall be completed to the satisfaction of the City Engineer, the Director of Planning and Zoning, the Chief of Police, the Fire Chief or their designee, depending on which department recommended the condition. Any agreements, easements or covenants required to be entered into shall be In a form approved by the City Attorney. PROJECT SPECIFIC CONDITIONS Administrative 1. The proposed development of the premises shall conform to all applicable regulations of the Palm Springs Zoning Ordinance, Municipal Code, or any other City Codes, ordinances and resolutions which supplement the zoning district regulations. 2. The owner shall defend, indemnify, and hold harmless the City of Palm Springs, its agents, officers, and employees from any claim, action, or proceeding against the City of Palm Springs or its agents, officers or employees to attach, set aside, void or annul, an approval of the City of Palm Springs, its legislative body, advisory agencies, or administrative officers concerning Case 5.0957-CUP. The City of Palm Springs will promptly notify the applicant of any such claim, action, or proceeding against the City of Palm Springs and the applicant will either undertake defense of the matter and pay the City's associated legal costs or will advance funds to pay for defense of the matter by the City Attorney. If the City of Palm Springs fails to promptly notify the applicant of any such claim, action or proceeding or falls to cooperate fully In the defense, the applicant shall not, thereafter, be responsible to defend, indemnify, or hold harmless the City of Palm Springs. Notwithstanding the foregoing, the City retains the right to settle or abandon the matter without the applicant's consent but should it do so, the City shall waive the Indemnification herein, except, the City's decision to settle or abandon a matter following an adverse judgment or failure to appeal, shall not cause a waiver of the indemnification rights herein. 3. That the property owner(s)and successors and assignees in interest shall maintain and repair the improvements including and without limitation sidewalks, bikeways, parking areas, landscape, irrigation, lighting, signs, walls, and fences between the curb and property line, Including sidewalk or bikeway easement areas that extend onto private property, in a first class condition, free from waste and debris, and in accordance with all applicable law, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction at the property owner's sole expense. This condition shall be included In the recorded covenant agreement for the property If j l required by the City. 4. The project is located in an area defined as having an impact on fish and wildlife as defined in Section 711.4 of the Fish and Game Code and an Environmental Impact Report is being prepared on the project; therefore a fee of$914.00 plus an administrative fee of$50.00 shall be submitted by the applicant in the form of a money order or a cashier's check payable to the Riverside County Clerk prior to Council action on the project. This fee shall be submitted by the City to the County Clerk with the Notice of Determination. Action on this application shall not be final until such fee Is paid. 5. Prior to issuance of a building permit, Fringe Toed Lizard Mitigation fees shall be paid to the Coachella Valley Association of Governments(CVAG). 6. This project shall be subject to Chapters 2.24 and 3.37 of the Municipal Code regarding public art. The project shall either provide public art or payment of an in lieu fee. In the case of the in-lieu fee, the fee shall be based upon the total building permit valuation as calculated pursuant to the valuation table in the Uniform Building Code, the Peeing being 1/2% for commercial projects or 1/4% for residential projects with first $100.000 of total building permit valuation for individual single-family units exempt Should the public art be located on the project site, said location shall be reviewed and approved by the Director of Planning and Zoning and the Public Arts Commission, and the property owner shall enter Into a recorded agreement to maintain the art work and protect the public rights of access and viewing. 7. As the property is Indian trust land, fees as required by the Agua Caliente Band of Cahuilla Indians Tribal Council shall be paid prior to consideration of this project by the Indian Planning Commission. CEQA 8. The mitigation measures of the environmental impact report (EIR) shall apply. The applicant shall submit a signed agreement that the mitigation measures outlined as part of the EIR will be included in the plans prior to consideration of the environmental assessment. The Mitigation measures are contained in the Mitigation Monitoring Program, which Is hereby Incorporated by reference. Cultural Resources 9. Prior to any ground disturbing activity, including clearing and grubbing, installation of utilities, and/or any construction related excavation, an Archaeologist qualified according to the Secretary of the Interior's Standards and Guidelines, shall be employed to survey the area for the presence of cultural resources identifiable on the ground surface. 10. Given that portions of the project area are within an alluvial formation, the possibility of buried resources is increased. A Native American Monitor shall be present during all ground-disturbing activities. a), Experience has shown that there is always a possibility of burled cultural resources in a project area. Given that, a Native American Monitor(s) shall be present during all ground disturbing activities including clearing and grubbing, excavation, burial of utilities, planting of rooted plants, etc. Contact the Agua Callente Band of Cahuilla Indian Cultural Office for additional information on the use and availability of Cultural Resource Monitors. Should buried cultural deposits be encountered, the Monitor shall contact the Director of Planning and Zoning and after the consultation the Director shall have the authority to halt destructive construction and shall notify a Qualified Archaeologist to Investigate and, if necessary, the Qualified Archaeologist shall prepare a treatment plan for submission to the State Historic Preservation Officer and Ague Callente Cultural Resource Coordinator for approval. b). Two copies of any,cultural resource documentation generated in connection with this project, including reports of Investigations, record search results and site records/updates shall be forwarded to the Tribal Planning, Building, and Engineering Department and one copy to the City Planning and Zoning Department prior to issuance of a certificate of occupancy. Biological 11.The applicant shall ensure that all Burrowing Owls must be surveyed for in suitable habitat no later that 30 days prior to ground disturbance. If burrowing owls are detected during the nesting period (February 1 -August 31), the following must occur: a). A 75 meter buffer zone around active nests must occur; and b). Relocation of birds if no eggs/incubation occurring. 12. If relocation is to occur, every effort shall be made to relocate owls using a passive method of one-way traps and to comply with the requirements of the Draft Tribal Habitat Conservation Plan. Note: Recommendation 11 and 12 were received subsequent to Final EIR preparation and are recommended in the Tribal Multi-Species Habitat Conservation plan. GENERAL CONDITIONS/CODE REQUIREMENTS 13.The Tentative Tract Map approval shall be valid for a period of three (3)years. Time extensions may be granted by the Planning Commission upon demonstration of good cause. 14. Prior to issuance of a building permit, the applicant must provide a standard avigation easement and non-suit covenant in a form prescribed and approved by the City Attorney,with reference to present and future owners of the parcel. The avigation and non-suite covenant shall be recorded against all parcels. 15.The project is subject to the City of Palm Springs Water Efficient Landscape Ordinance. The applicant shall submit an application for Final Landscape Document Package to the Director of Planning and Zoning for review and approval prior to the issuance of a building permit. Refer to Chapter 8.60 of the Municipal Code for specific requirements. 16. Prior to issuance of a grading permit, a Fugitive Dust and Erosion Control Plan shall be submitted and approved by the Building Official. Refer to Chapter 8.50 of the Municipal Code for speclfic requirements. 17. The grading plan shall show the disposition of all cut and fill materials. Limits of site disturbance shall be shown and all disturbed areas shalt be fully restored or landscaped. 18. The project shall comply with the City of Palm Springs Transportation Demand Management (TDM) Ordinance, which establishes transportation demand management requirements for the City of Palm Springs. Refer to Chapter 8.4 of the Municipal Code for specific requirements. This must be submitted for approval sixty a minimum of(60) days prior to issuance of the certificate of occupancy and must be approved prior to opening. POLICE DEPARTMENT 19, Developer shall comply with Section II of Chapter 8.04 of the Palm Springs Municipal Code, BUILDING DEPARTMENT 20, Prior to any construction on-site, all appropriate permits must be secured. ENGINEERING The Engineering Division recommends that if this application is approved, such approval be subject to the following conditions being completed in compliance with City standards and ordinances. Before final acceptance of the project, all conditions listed below shall be completed to the satisfaction of the City Engineer. STREETS '21. Any improvements within the public right-of-way require a City of Palm Springs Encroachment Permit. 22. Submit street Improvement plans prepared by a Registered Civil Engineer to the Engineering Division. The plan(s) shall he approved by the City Engineer prior to issuance of any grading or building permits. 23. Abandonment of existing public, rights-of-way and easements are required to facilitate the proposed Tentative Parcel Map. Abandonment of public right-of-way for Sky Point Drive North, Sky Point Drive West and Sky Point Drive East (shown as Lots D and E on Tract Map No. 19544) and a 50 feet wide landscape easement (shown as Lots A,and B on Tract Map No. 19544) will be necessary. The developer shall be responsible for coordinating approval of the abandonment of the public rights-of-way with all public utility agencies. Developer shall coordinate final relocation, adjustment or abandonment of all utilities with the respective utility agencies; and shall coordinate demolition of all existing improvements, reconstruction of affected intersecting streets, as appropriate, with the Engineering Division, RAMON ROAD 24. Dedicate additional right-of-way concentric with the back of sidewalk along the bus turnout to be located at the southeast corner of the intersection of Ramon Road and San Luis Rey Drive. 25. Construct a 160-feet long by 12-feet wide bus turn out at the southeast corner of the intersection of Ramon Road and San Luis Rey Drive. The configuration shall be approved by the City Engineer, in coordination with SunLine Transit Agency. Contact SunLlne Transit Agency for details regarding bus stop furniture and bus shelter requirements. A bus stop shelter and required furniture, lighting, and other improvements required by SunLine Transit Agency shall be constructed. 26. The existing sidewalk and bicycle path shall be removed and a new 12 feet wide Class I meandering combination sidewalk and bicycle path (Caltrans Design Manual, Chapter 1000 - Bikeway Planning and Design) shall be constructed along the entire. The bicycle path shall be constructed of colored Portland cement concrete. The admixture shall be Desert Sand, Palm Springs Tan, or approved equal color by the Engineering Division. OR Protect the existing a 5 feet wide sidewalk in place the existing a 5 feet wide and construct a separate 8 feet wide Class I meandering bicycle path (Caltrans Design Manual, Chapter 1000 - Bikeway Planning and design) shall be constructed along the Ramon Road frontage. The bicycle path shall be constructed of colored Portland cement concrete. The admixture shall be Desert Sand, Palm Springs Tan, or approved equal color by the Engineering Division. The concrete shall receive a broom finish. 27. The existing curb and gutter shall remain in place except for a curb out necessary for the proposed driveway approach and as necessary for construction of the required bus turn-out. 28. Construct a 14-feet wide raised, landscaped median island as specified by the City Engineer from San Luis Rey Drive to Crossley Road. Median landscaping shall be designed consistent with median landscaping within the existing Ramon Road medians, subject to the approval of the Director of Planning and Zoning. The median nose width shall be constructed 4 feet wide and have cobblestone paving. The left turn pockets shall be designed in accordance with Section 405 of the current edition of the Caltrans Highway Design Manual, in coordination with requirements included in the Destination Ramon Project Traffic Impact Study prepared by Endo Engineering, dated August 2003 (as amended), and as approved by the City Engineer. Design and construction of the landscaped median island shall be coordinated with the City of Cathedral City, as required. 29. All broken or off grade street improvements shall be repaired or replaced. CROSSLEY ROAD 30. Protect the existing sidewalk in place and construct a separate 8 feet wide Class I meandering bicycle path (Caltrans Design Manual, Chapter 1000 - Bikeway Planning and design) along the entire frontage. The bicycle path shall be constructed of colored Portland cement concrete.The admixture shall be Desert Sand, Palm Springs Tan, or approved equal color by the Engineering Division. The concrete shall receive a broom finish. OR at the developer's option, if a new meandering combination sidewalk and bicycle path is proposed, the existing sidewalk shall be removed and a new 12 feet wide Class I meandering combination sidewalk and bicycle path (Caltrans Design Manual, Chapter 1000 - Bikeway Planning and Design) shall be constructed along the entire frontage. The bicycle path shall be constructed of colored Portland cement concrete. The admixture shall be Desert Sand, Palm Springs Tan, or approved equal color by the Engineering Division. The concrete shall receive a broom finish. SKY POINT DRIVE(NORTH, EAST, AND WEST) 31. Remove all abandoned street improvements, underlying utilities, and other improvements in accordance with requirements of the affected utility companies and the City Engineer. Removals shall occur upon approval of a Parcel Map of the subject property, formally vacating and abandoning the existing public rights-of-way. PARCEL MAP 32. A Parcel Map shall be prepared by a Califomia registered Land Surveyor or qualified Civil Engineer and submitted to the Engineering Division for review and approval. A Title Report prepared for subdivision guarantee for the subject property, the traverse closures for the existing parcel and all lots created therefrom, and copies of record documents shall be submitted with the Parcel Map to the Engineering Division as part of the review of the Map. The Parcel Map shall be approved by the City Council prior to issuance of building permits, 33. In accordance with Section 66445 (j) of the Government Code, the existing public rights-of-way for Sky Point Drive East, West, and North may be abandoned upon the filing of a Parcel Map identifying the abandonment of the easements granted to the City of Palm Springs. Prior to approval of a Parcel Map, the developer shall coordinate with each public utility company and determine specific requirements as to the abandonment and/or relocation of existing underground utilities that may exist within the public rights-of-way to be abandoned. Prior to approval of a Parcel Map, the developer shall provide to the City Engineer a letter of approval regarding the proposed abandonment of Sky Point Drive rights-of-way from each public utility agency. 34. -The developer shall enter Into an agreement that provides the City of Palm Springs with an exclusive right of entry onto the subject property with the right to remove all abandoned street improvements at the developer's expense, in the event removal of the abandoned street improvements Is not completed within two (2) years following approval of a Parcel Map by the City Council. The agreement shall be secured with appropriate subdivision security, as approved by the City Attorney, and said security shall be available to the City upon notice from the Clty Engineer that the developer has failed to perform its obligations as required by the agreement. The developer shall provide written estimates of cast to remove all abandoned street improvements, abandon and/or relocate all existing underground utilities, and construct street improvements as necessary, subject to the approval of the City Engineer. Estimates of costs related to public utility abandonment and/or relocation shall be determined by the respective utility agency, as appropriate. The agreement shall executed by the developer prior to approval of a Parcel Map by the City Councll. The developer shall submit a deposit of$2,000 for preparation of the agreement, and shall be subject to actual costs associated with Its preparation by the City Attorney. 35. In accordance with Government Code Section 66411.1, the Tentative Parcel Map is a subdivision of five or more lots (parcels), and is subject to construction of all required public improvements. Prior to approval of a Parcel Map, all required public improvements shall be completed to the satisfaction of the City Engineer, or shall be secured by a construction agreement in accordance with Government Code Section 66462. � � ABANDONMENT AGREEMENT by and between CITY OF PALM SPRINGS and AMERICAN REALTY TRUST, INC. A GEORGIA CORPORATION 1003/018/32947.02 TABLE OF CONTENTS Paae 1. Removal Obligations. .......................................................................................................1 I.I. Removal Work......................................................................................................1 1.2. Performance of Work............................................................................................2 1.3. Authority of the City Engineer.............................................................................2 1.4. Changes in the Work.............................................................................................2 1.5. Documents Available at the Site...........................................................................2 1.6. Inspection..............................................................................................................2 1.7. Defective Work.....................................................................................................2 1.8. No Warranty by City.............................................................................................3 1.9. Compliance With Law..........................................................................................3 1.10. Suspension of Work..............................................................................................3 1.11. Final Acceptance of Removal Work.....................................................................3 2. Time for Performance.......................................................................................................3 2.1. Completion Dates..................................................................................................3 2.2. Force Maj cure.......................................................................................................3 2.3. Continuous Work..................................................................................................4 2.4. Time of the Essence..............................................................................................4 3. Labor.................................................................................................................................4 3.1. Labor Standards Prevailing Wages.......................................................................4 3.2. Nondiscrimination.................................................................................................4 3.3. Licensed Contractors ............................................................................................4 3.4. Worker's Compensation........................................................................................4 4. Security. ............................................................................................................................4 4.1. Required Security..................................................................................................4 qJ44X7 i 1003/018/32947.02 TABLE OF CONTENTS f tort. Page 4.2. Form of Security Instruments ...............................................................................5 4.3. Developer's Liability.............................................................................................6 4.4. Letters of Credit. ...................................................................................................6 4.5. Release of Security Instruments............................................................................6 5. Cost of Removal Work and Provision of lnspection Service. ..........................................7 5.1. Developer Responsible for All Costs of Removal Work......................................7 5.2. Payment to City for Cost of Related Inspection and Engineering Services.................................................................................................................7 6. Default...............................................................................................................................7 6.1. Institution of Legal Actions..................................................................................7 6.2. Interest...................................................................................................................7 6.3. Choice of Forum...................................................................................................7 6.4. State Law ..............................................................................................................7 6.5. Remedies Not Exclusive.......................................................................................7 6.6. Attorneys' Fees and Costs ....................................................................................7 7. Indemnity..........................................................................................................................8 8. General Provisions............................................................................................................8 8.1. Successors and Assigns.........................................................................................8 8.2. No Third Party Beneficiaries................................................................................8 8.3. Entire Agreement; Waivers and Amendments .....................................................8 9. Corporate Authority..........................................................................................................8 ii 1003/019/32947.02 ABANDONMENT AGREEMENT THIS ABANDONMENT AGREEMENT (this "Agreement") is entered into this day of , 2004, by and between the CITY OF PALM SPRINGS, a municipal corporation of the State of California ("City"), and AMERICAN REALTY TRUST, INC., a Georgia corporation ("Developer"). Hereafter, City and Developer may be referred to as "party" or collectively as "parties". RECITALS WHEREAS, Developer is the master ground lessee of certain real property in the City of Palm Springs, County of Riverside, State of California, as specifically described on Exhibit "A", attached hereto and incorporated by reference ("Property"); pursuant to that certain Master Business Lease between Developer, as lessee, and Germaine Pico Arenas, as successor-in- interest to Richard Brown Arenas, P.S. 1, as lessor, dated April 10, 1978 ("Master Lease'). The legal description and a map of the Property are attached hereto and incorporated herein as Exhibit "A" by this reference. WHEREAS, Developer has obtained the approval of Tentative Parcel Map 30745 for the Property which contains conditions of approval ("Conditions") for the development of the Property. A true and correct copy of the Conditions are attached hereto and incorporated herein as Exhibit "B". WHEREAS, Condition 34 requires Developer and the City to enter into an agreement that provides the City with the right to remove abandoned street improvements within the Property at Developer's expense if Developer has not removed the abandoned street improvements within two (2) years of the approval of Parcel Map 30745 ("Map") by the City Council. COVENANTS Based upon the foregoing Recitals which are incorporated herein by reference and in consideration of City's approving the Map for the Property and permitting development of the Property to proceed, the parties hereby agree as follows: 1. Removal Obligations. 1.1. Removal Work. Developer agrees, at its sole cost and expense, to remove all abandoned street improvements existing on the Property ("Removal Work"), which Removal Work shall be completed on or before the date that is two (2) years following approval of the Map by the City Council. A list of the items included in the Removal Work is attached hereto and incorporated herein as Exhibit "C". The parties hereby agree that the estimated cost for the Removal Work is Three Hundred Fourteen Thousand Dollars ($314,000.00) ("Removal Work Cost") and that the Removal Work shall be secured pursuant to Section 4 of this Agreement. Should Developer fail to complete the Removal Work within two (2) years of the approval of the Map, the City shall have the right to draw upon the Security Instruments and 1003/018/32947,02 to arrange for the completion of all, or any portion of, the Removal Work, including the right to enter onto the Property and to perform the Removal Work. 1.2. Performance of Work. Within two (2) years of the approval of the Map by the City Council, Developer shall furnish or cause to be furnished all materials, labor, tools, equipment, utilities, transportation, and incidentals required to perform the Removal Work pursuant to this Agreement. Should Developer fail to do so, the City shall have the right to draw upon the Security Instruments and to arrange for the completion of all, or any portion of, the Removal Work, including the right to enter onto the Property and to perform the Removal Work. 1.3. Authority of the City Engineer. In addition to the authority granted to the City Engineer elsewhere in this Agreement, the City Engineer shall have the authority to decide all questions which may arise as to the quality and acceptability of materials furnished and work performed, and all questions as to the satisfactory and acceptable fulfillment of the terms of this Agreement by Developer and Developer's contractor. 1.4. Changes in the Work. The City Engineer, without invalidating this Agreement, may order extra work in connection with removing the abandoned street improvements to the list of Removal Work (Exhibit "C") or may change the required Removal Work by altering or deleting any portion of the Removal Work as deemed necessary or desirable by the City Engineer to accomplish the purposes of this Agreement and to protect the public health, safety, or welfare of the citizens of the City. The City Engineer shall notify Developer or its contractor in writing at the time that a determination has been made which requires a change in the Removal Work. No field changes performed or proposed by Developer or its contractor shall be binding on City unless approved in writing by the City Engineer. 1.5. Documents Available at the Site. Developer shall cause its contractor to keep a copy of all approved plans ("Plans") at the job site and shall give access thereto to the City's inspectors and engineers at all times. 1.6. hispection. Developer shall have an authorized representative on the job site at all times during which work is being done who has full authority to act for Developer, or its design engineer, and Developer's contractor(s) regarding the Removal Work. Developer shall cause its contractor to famish the City with every reasonable facility for ascertaining whether or not the Removal Work is in accordance with the requirements and intent of this Agreement. City's inspector shall have the authority to stop any and all work not in accordance with the requirements contained or referenced in this Agreement. The inspection of the Removal Work by City shall not relieve Developer or the contractor of any obligations to fulfill this Agreement as herein provided, and unsuitable materials or work may be rejected, notwithstanding that such materials or work may have been previously overlooked or accepted. 1.7. Defective Work. Developer shall at its sole expense cause its contractor to repair, reconstruct, replace, or otherwise make acceptable any work found by the City Engineer to be defective. 2 1003/018/32947 02 1.8. No Warranty by City. The Map has been prepared by or on behalf of Developer or its consultants or contractors, and City makes no representation or warranty, express or implied, to Developer or to any other person regarding the adequacy of the Map or related documents. 1.9. Compliance With Law. In addition to the express provisions of this Agreement and the Plans, Developer shall cause performance of the Removal Work to be completed in accordance with all other applicable federal, state, and local laws, ordinances, rules and regulations. 1.10. Suspension of Work. City Engineer shall have authority to order suspension of the work for failure of the contractor to comply with law pursuant to Section 1.9. In case of suspension of work for any cause whatever, Developer and its contractor shall be responsible for all materials and shall store them properly if necessary and shall provide suitable drainage and erect temporary structures where necessary. 1.11. Final Acceptance of Removal Work. After Developer's contractor has completed all of the Removal Work, Developer shall then request a final inspection of the work. If items are found by the inspector to be incomplete or not in compliance with this Agreement or any of the requirements contained or referenced herein, City will inform the contractor of such items. After the contractor has completed these items, the procedure shall then be the same as specified herein for the contractor's initial request for final inspection. If items are found by City's inspector to be incomplete or not in compliance after two (2) "final" inspections, City may require the contractor, as a condition to performing further field inspections, to submit in writing a detailed statement of the work performed subsequent to the date of the previous inspection which was found to be incomplete or not in compliance at that time. No inspection or acceptance pertaining to specific parts of the Removal Work shall be construed as final acceptance of any part until the overall final acceptance by City is made. Final acceptance shall not constitute a waiver by City of defective work subsequently discovered. The date on which the Removal Work will be considered as complete shall he the date on which the City Engineer approves of the Removal Work. 2. Time for Performance. 2.1. Completion Dates. Subject to Section 2.2 below, Developer shall complete or cause to be completed all of the Removal Work within two (2) years of the approval of the Map by the City Colmcil of City. Extensions of time for completion of the Removal Work may be granted upon mutual agreement of the City Engineer and Developer, either verbally or in writing, as required by the City Engineer or his designee. Should Developer fail to complete the Removal Work within two (2) years, the City shall have the right to draw upon the Security Instruments and to arrange for the completion of all, or any portion of, the Removal Work, including the right to enter onto the Property and to perform the Removal Work. 2.2. Force Majeure Notwithstanding the provisions of Section 2.1, Developer's time for completion of the Removal Work shall be extended for the period of any enforced delay caused due to circumstances beyond the control and without the fault of 1003/018/32947.02 Developer, including to the extent applicable adverse weather conditions, flood, earthquakes, strikers, lockouts, acts or failures to act of a public agency (including City), required changes to the Scope of Work required by City, and similar causes; provided, however, that the period of any enforced delay hereunder shall not include any period longer than five (5) days prior to City's receipt of a written notice from Developer or its Contractor detailing the grounds for Developer's claim to a right to extend its time for performance hereunder. City Engineer shall evaluate all claims to Force Majeure and his decision shall be final. 2.3. Continuous Work. After commencement of the Removal Work, Developer shall cause such work to be diligently pursued to completion, and shall not abandon the work for a consecutive period or more than thirty (30) days, events of Force Majeure excepted. 2.4. Time of the Essence. Time is of the essence of Developer's performance of all of its obligations under this Agreement. 3. Labor. 3.1. Labor Standards/Prevailing Wages. Developer shall be responsible for causing all contractors and subcontractors performing any of the Removal Work to comply with all applicable federal and state labor standards, including, to the extent applicable, the prevailing wage requirements promulgated by the Director of Industrial Relations of the State of California Department of Labor. 3.2. Nondiscrimination. Developer agrees that no contractor or subcontractor performing any of the Removal Work of Improvement shall discriminate against any employee or prospective employee with respect to such work in hiring, promotion, seniority, or any other terns and conditions of employment on the grounds of race, creed, color, national origin, ancestry, religion, sex, or marital status. 3.3. Licensed Contractors. Developer shall cause all of the Removal Work to be constructed by contractors and subcontractors with valid California Contractors' licenses for the type of work being performed. 3.4. Worker's Compensation. Developer shall cause every contractor and subcontractor performing any of the Removal Work to carry Workers' Compensation Insurance as required by the Labor Code of the State of California and shall cause each such contractor and subcontractor to submit to City a Certificate of Insurance verifying such coverage prior to such contractor or subcontractor entering onto the job site. 4. Security. 4.1. Required Security. (a) Prior to the City's execution of this Agreement, Developer shall furnish to City the following bonds, letters of credit, instruments of credit (assigmnent of deposit account) or other security acceptable to City, in its sole and absolute discretion, and satisfying 4 1003/018/32947.02 the requirements of the applicable provisions of Section 4 below (hereinafter "Security Instruments'): (i) A Security Instrument securing Developer's faithful performance of all of the Removal Work ("Faithful Performance Security Instrument"), in an amount equal to 100% of the Removal Work Cost. (b) Prior to the execution of this Agreement, Developer shall submit a cash deposit of Two Thousand Dollars ($2,000) as an advance on the expenses that the City will incur in connection with the preparation of this Agreement by the City Attorney. City shall draw on this deposit in the amount of its actual costs incurred in connection with the preparation of this Agreement by the City Attorney. 4.2. Form of Security Instruments. All Security Instruments shall be in the amounts required under Section 3.1(a), as applicable, shall meet the following minimum requirements and otherwise shall be in a form provided by City or otherwise approved by the City Attorney: (a) Bonds. For Security Instruments provided in the form of bonds, any such bond must be issued and executed by an insurance company or bank authorized to transact surety business in the State of California. Any insurance company acting as surety shall have a minimum rating of A-IX, as rated by the current edition of Best's Key Rating Guide published by A.M. Best's Company, Oldwick, New Jersey, 08858. Any bank acting as surety shall have a minimum rating of AA, as rated by Moody's or Standard &Poor's. (b) Letters of Credit. For Security Instruments which are letters of credit, any letter of credit shall be an original separate unconditional, Irrevocable, negotiable and transferable commercial letter of credit issued by a financial institution with offices in the State of California acceptable to City. Any such letter of credit shall specifically permit City to draw on same by unilateral certification of the City Engineer of the City that Developer is in default under its payment or performance obligations hereunder or in the event Developer fails to deliver a replacement letter of credit not less than thirty (30) days prior to the date of expiration of any such letter of credit and shall further be subject to the provisions of Section 4.5. (c) Instrument of Credit. For Security Instruments which are Instruments of Credit, any Instrument of Credit shall be an assignment of deposit account assigning as security to City all of Developer's interest in fluids on deposit in one or more bank accounts with financial institutions acceptable to City. (d) General Requirements for all Security Instruments. G) Payments under any Security Instruments shall be required to be made (and, with respect to bonds, litigation shall be required to be instituted and maintained) in the City of Palm Springs, State of California (and the Security Instrument shall so provide). 5 1003/018/32947.02 (ii) Each Security Instrument shall provide that changes may be made in the Removal Work pursuant to the terms of this Agreement without notice to any issuer or surety and without affecting the obligations under such Security Instrument. (iii) Each Security Instrument shall have a minimum tern of three(3)years after the execution of this Agreement. 4.3. Developer's Liability. While no action of Developer shall be required in order for City to draw on its security under any Security Instrument, Developer agrees to cooperate with City to facilitate City's realization under any Security Instrument and to take no action to prevent City from such realization of any Security Instrument. Notwithstanding the giving of any Security Instrument or the subsequent expiration of any Security Instrument or any failure by any surety or financial institution to perform its obligations with respect thereto, Developer shall be personally liable for performance under this Agreement and for payment of the cost of the labor and materials for the Removal Work and shall, within ten (10) days after written dernand therefore, deliver to City such substitute security as City shall require to satisfy the requirements of this Section 4. 4.4. Letters of Credit. (a) In the event a letter of credit is given pursuant to Section 4.2(b), City shall be entitled to draw on any such letter of credit if a replacement letter of credit (expiring in not less than three (3) years, unless City agrees to a lesser term in City's sole and absolute discretion) is not delivered not less than thirty (30) days prior to the expiration of the original letter of credit, such substitute letter of credit being in the same amount and having the terms and conditions as the initial letter of credit delivered hereunder, issued by a financial institution acceptable to City as of the date of delivery of the replacement letter of credit. (b) In the event that the City draws on a letter of credit, the City may elect, in its sole and absolute discretion, to apply any such funds drawn to the obligations secured by such letter of credit or to hold such fluids in an account under the control of the City, with no interest accruing thereon for the benefit of the Developer. If the City elects to hold the funds in an account pursuant to the foregoing, City may thereafter at any time elect instead to apply such funds as provided in the foregoing. Developer agrees and hereby grants City a security interest in such account to the extent required for City to realize on its interests therein and agrees to execute and deliver to City any other documents requested by City in order to evidence the creation and perfection of City's security interest in such account. 4.5. Release of Security Instruments. (a) City shall release the Security Instrument when all of the following have occurred: (i) Developer has made written request for release; and (ii) The Removal Work has been completed to the City's satisfaction; and 6 1003/018/32947.02 (iii) Any City fees have been paid pursuant to Section 5.2; and (iv) If applicable, City has received written evidence that Developer's contractors have been paid for the Removal Work; and (v) No claims are outstanding at that time regarding defective work. 5. Cost of Removal Work and Provision of Inspection Service. 5.1. Developer Responsible for All Costs of Removal Work. Developer shall be responsible for payment of all costs incurred for performance of the Removal Work. 5.2. Payment to City for Cost of Related Inspection and Engineering Services. Developer shall compensate City for all of City's costs reasonably incurred in having its authorized representative make the usual and customary inspections of the Removal Work. The procedures for deposit and payment of such fees shall be as established by the City Council. 6. Default. 6.1. Institution of Legal Actions. In addition to any other rights or remedies, either party.may institute a legal action to cure, correct or remedy consistent with the purpose of this Agreement. 6.2. Interest. M the event of a default or breach by Developer which continues beyond any applicable notice and cure period, City shall be entitled to reimbursement from Developer of all costs and expenses incurred by City as a result of the default plus interest at eight percent (8%). 6.3. Choice of Forum. Legal actions must be instituted and maintained in the appropriate court in the County of Riverside, State of California. 6.4. State Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 6.5. Remedies Not Exclusive. In any case where this Agreement provides a specific remedy to City for a default by Developer hereunder, such remedy shall be in addition to, and not exclusive of, City's right to pursue any other administrative, legal, or equitable remedy to which it may be entitled. 6.6. Attorneys' Fees and Costs. In the event that Developer fails to perform any obligation under this Agreement, Developer agrees to pay all costs and expenses incurred by City in securing performance of such obligations, including costs of suit and reasonable attorney's fees. In the event of any dispute arising out of Developer's performance of its obligations under this Agreement or under any of the Security Instruments referenced herein, the prevailing party in such action, in addition to any other relief which may be granted, shall be entitled to recover its reasonable attorney's fees and costs. Such attorney's fees and costs shall a 57 1003/018/32947.02 include fees and costs on any appeal. Additionally, a party entitled to attorney's fees and costs shall be entitled to all other reasonable costs incurred in investigating such action, including the costs of taking depositions and discovery, retaining expert witnesses, and all other necessary and related costs with respect to the litigation. All such fees and costs shall be deemed to have accrued on commencement of the action and shall be enforceable whether or not the action is prosecuted to judgment. 7. Indemnity. Developer agrees to indemnify, defend, and hold harmless City and City's officers, employees, and agents from and against any and all claims, liabilities, losses, damages, causes of action, and obligations arising out of Developer's performance or failure to perform the Removal Work in accordance with the requirements contained or referenced in this Agreement and the approval of the Map. Said indemnity obligation shall apply to personal injury, death, property damage, economic loss, and any other monetary damage or penalty to which City may be subjected, including without limitation, attorney's fees and costs and the costs of realizing on any Security Instrument provided by Developer pursuant to the terms hereof. Such indemnity obligation shall not extend to any loss resulting from City's sole negligence or willful misconduct. 8. General Provisions. 8.1. Successors and Assigns. This Agreement shall be binding upon all successors and assigns to Developer's right, title, and interest in and to the Property and any portion thereof. 8.2. No Third Party Beneficiaries. This Agreement is intended to benefit only the parties hereto and their respective successors and assigns. Neither City nor Developer intend to create any third party beneficiary rights in this Agreement in any contractor, subcontractor, member of the general public, or other person or entity. 8.3. Entire Agreement; Waivers and Amendments. This Agreement integrates all of the terns and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements between the parties with respect to all or part of the subject matter hereof, except as may be expressly provided herein. All waivers of the provisions of this Agreement must be in writing and signed by an authorized representative of the party to be charged, and all amendments hereto must be in writing and signed by the appropriate representatives of both parties. 9. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant the (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into of this Agreement does not violate any provisions of any other Agreement to which said party is bound. 8 1003/018/32947.02 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. ATTEST: CITY OF PALM SPRINGS, CALIFORNIA By Patricia A. Sanders, City Clerk David Ready, City Manager RECOMMENDED BY: City Engineer DEVELOPER: AMERICAN REALTY TRUST, INC., a Georgia corporation By: — 4 '� EVV Signature By: Dan S. Allred Its: Vice President Mailing Address: 1800 Valley View Lane Dallas, TX 75234 9 1003/O18/32947.02 our a+r cvvy ii . ic rnn 040 44a ciao 8Lt SNlttt & WYNat N, LLY IA 0021002 IN WITNESS WI IFREW, the partikS hereto ltavt: executed 01as A91Ventcnt as of'the date first above Written. A I"ITST: CITY OF PALM SPRINGS, CALIFORNIA Patricia A. Sanders, City Cferk David Rcady, City Manager REC'OMMI?NDUID BY; APPROVFD AS 'I'O FORM shlrc,TIP�1t I / DEVP.L.OPER: '1NA'I [ON RAMON, I LC. a California limited liability c0111pany BY: ...... Its: Mailitar Address 1� ., 9 01003/001 W1294 7.02 ALL-PURPOSE ACKNOWLEDGMENT State of �e..r-��YY-�St�v� pepp- CAPACITY CLAIMED BY SIGNER County of C�- Gin) ❑ INDIVIDUAL(S) �1 C� ❑ CORPORATE On 3e d1L'-W before me, ,�Cti r l>s CaK�c` n 0�u L� c,1n1 OFPICER(S) Date Name,Title of Officer TITLE(S) personally appeared �da ti - 1�1 aC_� ❑ PARTNER(S) NAME(S)OF SIGNER(S) ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑personally known to me-OR- ❑ SUBSCRIBING WITNESS ❑ GUARDIAN/CONSERVATOR �] proved to me on the basis of satisfactory evidence to be the persons)who namp(s) ❑ OTHER rs/aze subscribed to the Rhin instrument and acknowledged to me that / he/they executed the same in his/ er/their authorized capacitys), and that by �t her/their signature) on the inst 'ent the person(p� or the entity upon behalf o which the persons )acted,executed the instrument. e . _ SIGNER IS REPRESENTING: Witness m hand and official seat. ®-�•�, �JACQUELINE RANGEL Commission 8 1388173 Notary Public-California �` ' •� `u' R1V4'r5jrle COLirIP,+ r ure f otary My Comm.Expires Dec 3,2006� ATTENTION NOTARY: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to unauthorized document. THIS CERTIFICATE Title or Type of Document Ct47ev d Cti72e� MUST BE ATTACHED TO THE DOCUMENT Number of Pages DATE of DOCUMENT DESCRIBED AT RIGHT: Signer(s)Other Than Named Above i r 1003/018132947.02 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY In the City of Palm Springs, County of Riverside, State of California, being a subdivision of Lots 1 through 10, inclusive, and lettered Lots A through E , inclusive, of Tract No 19544, as shown by Map on file in Book 142, Pages 79 and 80, of Maps, Records of said County, said State, as amended by certification of correction recorded January 23, 1986, as instrument no. 16924 of official records. y 1003/018/32947 02 EXHIBIT "B" CONDITIONS OF APPROVAL 1003/018/32947.02 RESOLUTION NO. EXHIBIT A TENTATIVE PARCEL MAP 30745 DESTINATION RAMON, LLC. 5601 RAMON ROAD APRIL 14, 2004 CONDITIONS OF APPROVAL Before final acceptance of the project, all conditions listed below shall be completed to the satisfaction of the City Engineer, the Director of Planning and Zoning, the Chief of Police,the Fire Chief or their designee,depending on which department recommended the condition. Any agreements, easements or covenants required to be entered into shall be In a form approved by the City Attorney. PROJECT SPECIFIC CONDITIONS Administrative 1. The proposed development of the premises shall conform to all applicable regulations of the Palm Springs Zoning Ordinance, Municipal Code, or any other City Codes, ordinances and resolutions which supplement the zoning district regulations. 2. The owner shall defend, indemnify, and hold harmless the City of Palm Springs, its agents, officers, and employees from any claim, action, or proceeding against the City of Palm Springs or its agents, officers or employees to attach, set aside, void or annul, an approval of the City of Palm Springs, its legislative body, advisory agencies, or administrative officers concerning Case 5.0957-CUP. The City of Palm Springs will promptly notify the applicant of any such claim, action, or proceeding against the City of Palm Springs and the applicant will either undertake defense of the matter and pay the Clty's associated legal costs or will advance funds to pay for defense of the matter by the City Attorney. If the City of Palm Springs fails to promptly notify the applicant of any such claim, action or proceeding or falls to cooperate fully In the defense, the applicant shall not, thereafter, be responsible to defend, indemnify, or hold harmless the City of Palm Springs. Notwithstanding the foregoing, the City retains the right to settle or abandon the matter without the applicant's consent but should it do so, the City shall waive the Indemnification herein, except, the City's decision to settle or abandon a matter following an adverse judgment or failure to appeal, shall not cause a waiver of the indemnification rights herein. 3. That the property owner(s) and successors and assignees in interest shall maintain and repair the Improvements including and without limitation sidewalks, bikeways, parking areas, landscape, irrigation, lighting, signs, walls, and fences between the curb and property Ilne, Including sidewalk or bikeway easement areas that extend onto private property, In a first class condition, free from waste and debris, and in accordance with all applicable law, rules, ordinances and regulations of all federal, stale, and local bodies and agencies having jurisdiction at the property owner's sole expense. This condition shall be Included In the recorded covenant agreement for the property if required by the City. 4, The project is located in an area defined as having an impact on fish and wildlife as defined in Section 711.4 of the Fish and Game Code and an Environmental Impact Report is being prepared on the project; therefore a fee of$914.00 plus an administrative fee of$50.00 shall be submitted by the applicant in the form of a money order or a cashler's check payable to the Riverside County Clerk prior to Council action on the project. This fee shall be submitted by the City to the County Clerk with the Notice of Determination. Action on this application shall not be final until such fee Is paid. 5. Prior to issuance of a building permit, Fringe Toed Lizard Mitigation fees shall be paid to the Coachella Valley Association of Governments(CVAG). 6. This project shall be subject to Chapters 2.24 and 3.37 of the Municipal Code regarding public art. The project shall either provide public art or payment of an in lieu fee. In the case of the in-lieu fee, the fee shall be based upon the total building permit valuation as calculated pursuant to the valuation table in the Uniform Building Code, the feeing being 1/2% for commercial projects or 1/4% for residential projects with first $100,000 of total building penult valuation for individual single-family units exempt. Should the public art be located on the project site, said location shall be reviewed and approved by the Director of Planning and Zoning and the Public Arts Commission, and the property owner shall enter Into a recorded agreement to maintain the art work and protect the public rights of access and viewing. 7. As the property is Indian trust land, fees as required by the Agua Caliente Band of Cahuilla Indians Tribal Council shall be paid prior to consideration of this project by the Indian Planning Commission. CEQA 8. The mitigation measures of the environmental impact report (EIR) shall apply. The applicant shall submit a signed agreement that the mitigation measures outlined as part of the EIR will be included in the plans prior to consideration of the environmental assessment. The Mitigation measures are contained in the Mitigation Monitoring Program, which is hereby incorporated by reference. Cultural Resources 9. Prior to any ground disturbing activity, including clearing and grubbing, installation of utilities, and/or any construction related excavation, an Archaeologist qualified according to the Secretary of the Interior's Standards and Guidelines, shall be employed to survey the area for the presence of cultural resources identifiable on the ground surface. 10. Given that portions of the project area are within an alluvial formation, the possibility of buried resources is increased. A Native American Monitor shall be present during all ground-disturbing activities. a), Experience has shown that there is always a possibility of buried cultural resources in a project area. Given that, a Native American Monitor(s) shall be present during all ground disturbing activities including clearing and grubbing, excavation, burial of utilities, planting of rooted plants, etc. Contact the Agua I Callente Band of Cehuilia Indian Cultural Office for additional information on the use and availability of Cultural Resource Monitors. Should buried cultural deposits be encountered, the Monitor shall contact the Director of Planning and Zoning and after the consultation the Director shall have the authority to halt destructive construction and shall notify a Qualified Archaeologist to investigate and, If necessary, the Qualified Archaeologist shall prepare a treatment plan for submission to the State Historic Preservation Officer and Ague Caliente Cultural Resource Coordinator for approval. b). Two copies of any,cultural resource documentation generated in connection with this project, including reports of Investigations, record search results and site records/updates shall be forwarded to the Tribal Planning, Building, and Engineering Department'and one copy to the City Planning and Zoning Department prior to issuance of a certificate of occupancy. Biological 11.The applicant shall ensure that all Burrowing Owls must be surveyed for in suitable habitat no later that 30 days prior to ground disturbance. If burrowing owls are detected during the nesting period(February 1 -August 31), the following must occur. a). A 75 meter buffer zone around active nests must occur; and b). Relocation of birds if no eggs/incubation occurring. 12. If relocation is to occur, every effort shall be made to relocate owls using a passive method of one-way traps and to comply with the requirements of the Draft Tribal Habitat Conservation Plan. Note; Recommendation 11 and 12 were received subsequent to Final EIR preparation and are recommended in the Tribal Multi-Species Habitat Conservation plan. GENERAL CONDITIONSICODE REQUIREMENTS 13.The Tentative Tract Map approval shall be valid for a period of three (3)years. Time extensions may be granted by the Planning Commission upon demonstration of good cause. 14. Prior to issuance of a building permit, the applicant must provide a standard avigatlon easement and non-suit covenant in a form prescribed and approved by the City Attorney, with reference to present and future owners of the parcel. The avigation and non-suite covenant shall be recorded against all parcels. 15.The project is subject to the City of Palm Springs Water Efficient Landscape Ordinance. The applicant shall submit an application for Final Landscape Document Package to the Director of Planning and Zoning for review and approval prior to the issuance of a building permit. Refer to Chapter 8.60 of the Municipal Code for specific requirements. 16. Prior to issuance of a grading permit, a Fugitive Dust and Erosion Control Plan shall be submitted and approved by the Building Official. Refer to Chapter 8.50 of the Municipal Code for specific requirements. 17. The grading plan shall show the disposition of all cut and fill materials. Limits of site disturbance shall be shown and all disturbed areas shall be fully restored or landscaped. 18. The project shall comply with the City of Palm Springs Transportation Demand Management (TDM) Ordinance, which establishes transportation demand management requirements for the City of Palm Springs. Refer to Chapter 8.4 of the Municipal Code for specific requirements. This must be submitted for approval stxty a minimum of(60) days prior to issuance of the certificate of occupancy and must be approved prior to opening. POLICE DEPARTMENT 19, Developer shall comply with Section II of Chapter 8.04 of the Palm Springs Municipal Code, BUILDING DEPARTMENT 20, Prior to any construction on-site, all appropriate permits must be secured. ENGINEERING The Engineering Division recommends that if this application is approved, such approval be subject to the following conditions being completed in compliance with City standards and ordinances. Before final acceptance of the project, all conditions listed below shall be completed to the satisfaction of the City Engineer. STREETS '21, Any improvements within the public right-of-way require a City of Palm Springs Encroachment Permit. 22, Submit street improvement plans prepared by a Registered Civil Engineer to the Engineering Division. The plan(s) shall be approved by the City Engineer prior to Issuance of any grading or building permits. 23, Abandonment of existing public rights-of-way and easements are required to facilitate the proposed Tentative Parcel Map. Abandonment of public right-of-way for Sky Point Drive North, Sky Point Drive West and Sky Point Drive East (shown as Lots D and E on Tract Map No. 10544) and a 50 feet wide landscape easement (shown as Lots A,and B on Tract Map No. 19544) will be necessary. The developer shall be responsible for coordinating approval of the abandonment of the public rights-of-way with all public utility agencies. Developer shalt coordinate final relocation, adjustment or abandonment of all utilities with the respective utility agencies; and shall coordinate demolition of all existing improvements, reconstruction of affected intersecting streets, as appropriate,with the Engineering Division. RAMON ROAD 24, Dedicate additional right-of-way concentric with the back of sidewalk along the bus turnout to be located at the southeast corner of the intersection of Ramon Road and San Luis Rey Drive. 25. Construct a 160-feet long by 12-feet wide bus turn out at the southeast corner of the intersection of Ramon Road and San Luis Rey Drive. The configuration shall be approved by the City Engineer, in coordination with SunLlne Transit Agency. Contact SunLlne Transit Agency for details regarding bus stop furniture and bus shelter requirements, A bus stop shelter and required furniture, lighting, and other improvements required by SunLine Transit Agency shall be constructed. 26. The existing sidewalk and bicycle path shall be removed and a new 12 feet wide Class I meandering combination sidewalk and bicycle path (Caltrans Design Manual, Chapter 1000 - Bikeway Planning and Design) shall be constructed along the entire. The bicycle path shall be constructed of colored Portland cement concrete. The admixture shall be Desert Sand, Palm Springs Tan, or approved equal color by the Engineering Division. OR Protect the existing a 5 feet wide sidewalk in place the existing a 5 feet wide and construct a separate 8 feet wide Class I meandering bicycle path (Caltrans Design Manual, Chapter 1000- Bikeway Planning and design) shall be constructed along the Ramon Road frontage. The bicycle path shall be constructed of colored Portland cement concrete. The admixture shall be Desert Sand, Palm Springs Tan, or approved equal color by the Engineering Division. The concrete shall receive a broom finish. 27. The existing curb and gutter shall remain in place except for a curb cut necessary for the proposed driveway approach and as necessary for construction of the required bus turn-out. 28. Construct a 14-feet wide raised, landscaped median island as specified by the City Engineer from San Luis Rey Drive to Crossley Road. Median landscaping shall be designed consistent with median landscaping within the existing Ramon Road medians, subject to the approval of the Director of Planning and Zoning. The median nose width shall be constructed 4 feet wide and have cobblestone paving. The left turn pockets shall be designed in accordance with Section 405 of the current edition of the Caltrans Highway Design Manual, In coordination with requirements included in the Destination Ramon Project Traffic Impact Study prepared by Endo Engineering, dated August 2003 (as amended), and as approved by the City Engineer. Design and construction of the landscaped median island shall be coordinated with the City of Cathedral City, as required. 29. All broken or off grade street improvements shall be repaired or replaced. CROSSLEY ROAD 30. Protect the existing sidewalk in place and construct a separate 8 feet wide Class I meandering bicycle path (Caltrans Design Manual, Chapter 1000 - Bikeway Planning and design) along the entire frontage. The bicycle path shall be constructed of colored Portland cement concrete.The admixture shall be Desert Sand, Palm Springs Tan, or approved equal color by the Engineering Division. The concrete shall receive a broom finish. f 1 OR at the developer's option, if a new meandering combination sidewalk and bicycle path is proposed, the existing sidewalk shall be removed and a new 12 feet wide Class I meandering combination sidewalk and bicycle path (Caltrans Design Manual, Chapter 1000 - Blkeway Planning and Design) shall be constructed along the.entire frontage. The bicycle path shall be constructed of colored Portland cement concrete. The admixture shall be Desert Sand, Palm Springs Tan, or approved equal color by the Engineering Division. The concrete shall receive a broom finish. SKY POINT DRIVE(NORTH, EAST,AND WEST) 31, Remove all abandoned street improvements, underlying utilities, and other improvements in accordance with requirements of the affected utility companies and the City Engineer. Removals shall occur upon approval of a Parcel Map of the subject property, formally vacating and abandoning the existing public rights-of-way. PARCEL MAP 32. A Parcel Map shall be prepared by a California registered Land Surveyor or qualified Civil Engineer and submitted to the Engineering Division for review and approval. A Title Report prepared for subdivision guarantee for the subject property, the traverse closures for the existing parcel and all lots created therefrom, and copies of record documents shall be submitted with the Parcel Map to the Engineering Division as part of the review of the Map. The Parcel Map shall be approved by the City Council prior to issuance of building permits. 33. In accordance with Section 66446 0) of the Government Code, the existing public rights-of-way for Sky Point Drive East, West, and North may be abandoned upon the filing of a Parcel Map identifying the abandonment of the easements granted to the City of Palm Springs. Prior to approval of a Parcel Map, the developer shall coordinate with each public utility company and determine specific requirements as to the abandonment and/or relocation of existing underground utilities that may exist within the public rights-of-way to be abandoned. Prior to approval of a Parcel Map, the developer shall provide to the City Engineer a letter of approval regarding the proposed abandonment of Sky Point Drive rights-of-way from each public utility agency. 34. -The developer shall enter Into an agreement that provides the City of Palm Springs with an exclusive right of entry onto the subject property with the right to remove all abandoned street improvements at the developer's expense, in the event removal of the abandoned street improvements is not completed within two (2) years following approval of a Parcel Map by the City Council. The agreement shall be secured with appropriate subdivision security, as approved by the City Attorney, and said security shall be available to the City upon notice from the City Engineer that the developer has failed to perform its obligations as required by the agreement. The developer shall provide written estimates of cost to remove all abandoned street improvements, abandon and/or relocate all existing underground utilities, and construct street improvements as necessary, subject to the approval of the City Engineer. Estimates of costs related to public utility abandonment and/or relocation shall be determined by the respective utility agency, as appropriate, The agreement shall executed by the developer prior to approval of a Parcel Map by the City Council. The developer shall submit a deposit of$2,000 for preparation of the agreement, and shall be subject to actual costs associated with Its preparation by the City Attorney. 35. In accordance with Government Code Section 664tt.f, the Tentative Parcel Map is a subdivision of five or more lots (parcels), and is subject to construction of all required public improvements. Prior to approval of a Parcel Map, all required public Improvements shall be completed to the satisfaction of the City Engineer, or shall be secured by a construction agreement in accordance with Government Code Section 66462, EXHIBIT "C" REMOVAL WORK The "Removal Work" necessary to remove all abandoned street improvements includes, but is not limited to: 1. Removal of all abandoned street improvements. 2. Abandomnent and/or relocation of all existing underground utilities. 3. Construction of new street improvements as necessary, subject to the approval of the City Engineer. The list may be modified by the delivery of written notice from the City Engineer to Developer as set forth in Section 1.4 1003/018/32947.02 RESOLUTION NO. OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING PARCEL MAP NO. 30745 FOR PROPERTY LOCATED AT THE "SKYPOINT CENTER", IN SECTION 20, TOWNSHIP 4 SOUTH, RANGE 5 EAST WHEREAS, the Planning Commission, at its meeting of March 24, 2004, recommended approval of Tentative Parcel Map No. 30745 prepared by Development Resources Consultants, Inc., representing American Realty Trust, Inc., a Georgia corporation, for the above described property; and WHEREAS, the City Council at its meeting of April 14, 2004, approved Tentative Parcel Map No. 30745 subject to conditions; and WHEREAS, the abandonment of Skypoint Drive North, Skypoint Drive West, and Skypoint Drive East are shown on Parcel Map No. 30745, to be abandoned pursuant to Section 66445 Q) of the Government Code; and WHEREAS, the owner, by separate instrument, has offered dedication to the City of Palm Springs a right-of-way for a bus-turn out, and an easement for bikepath and sidewalk purposes adjacent to Ramon Road and Crossley Road. NOW THEREFORE BE IT RESOLVED by the City Council of the City of Palm Springs as follows: 1. That Parcel Map No. 30745 is in substantial conformance with approved Tentative Parcel Map No. 30745; and 2. That requisite conditions associated with Tentative Parcel Map No. 30745 have been satisfied; and 3. That Parcel Map No. 30745 is in conformance with the General Plan; and 4. That Parcel Map No. 30745 conforms to all requirements of the Subdivision Map Act of the State of California; and 5. That the abandonment of Skypoint Drive North, Skypoint Drive West, and Skypoint Drive East as shown on Parcel Map No. 30745 are approved, pursuant to Section 66445 0) of the Government Code; and 6. That the City Manager is hereby authorized to enter into a Subdivision Improvement Agreement and Abandonment Agreement with the subdivider and to accept securities in conformance with the requirements therein for construction or removal of required public improvements; and 7. That the City Clerk shall cause to have recorded with the Riverside County Recorder the Subdivision Improvement Agreement and Abandonment Agreement; and 8. That Parcel Map No. 30745 is hereby approved for purposes therein defined. Resolution No. ADOPTED this 61h day of October, 2004. AYES: NOES: ABSENT: ATTEST: CITY OF PALM SPRINGS, CALIFORNIA By City Clerk City Manager REVIEWED &APPROVED AS TO FORM: City Attorney