HomeMy WebLinkAbout3/17/2004 - STAFF REPORTS (30) DATE: MARCH 17, 2004
TO: COMMUNITY REDEVELOPMENT AGENCY
FROM: DIRECTOR OF COMMUNITY& ECONOMIC DEVELOPMENT
APPROVAL OF A LICENSE FOR PERFORMANCE OF REMEDIATION WORK AND A
SECOND AMENDED AND RESTATED EXCLUSIVE AGREEMENT TO NEGOTIATE
WITH GEIGER, LLC OF BEVERLY HILLS, CALIFORNIA, AND APPROVAL OF
CONTRACT SERVICES AGREEMENT WITH DUDEK & ASSOCIATES, INC. NOT TO
EXCEED $28,870 FOR REMEDIATION MONITORING, ON AN AGENCY-OWNED
PARCEL AT THE NORTHEAST CORNER OF GENE AUTRY TRAIL AND RAMON ROAD
RECOMMENDATION:
It is recommended that the Agency approve a License for the Performance of
Remediation Work and a Second Amended and Restated Exclusive Agreement to
Negotiate with Geiger, LLC ("Developer") extending the Agreement for a period of
three years, adequate to complete the entitlement process on Agency- and
privately-owned parcels as well as ensure the Developer's leasing timetable; and a
Contract Service Agreement with Dudek & Associates, Inc. not to exceed $28,870
for remediation monitoring services of + 38 acres at the corner of Gene Autry Trail
and Ramon Road.
BACKGROUND:
In February, 2002 the Agency entered an Agreement with Geiger, LLC on the
Agency-owned parcel at the corner of Gene Autry Trail and Ramon Road,
commonly known as the dumpsite parcel. Because of the Developer's
performance on the project, the Agency extended the negotiating period another
year in April, 2003. Geiger's option period allowed it to conduct environmental
assessments, negotiate with the adjacent property owner, and design and market
the project to tenants. Geiger has now purchased the two privately owned parcels
on the site, (including the 5' "spite strip" of land along the eastern boundary of the
site, which allows for ingress and egress on San Luis Rey, a signalized corner)
been successful gaining tenant interest in the project and had its remediation plan
for the site approved by the California Department of Toxic Substances Control
(DTSC) on March 4, 2004. The company's remediation engineer, The Source
Group, prepared and submitted the remediation plan to the Riverside County Local
Enforcement Agency, which referred the plan to the DTSC for further review and
approval. DTSC's approval comes with a CEQA action on the remediation project
as part of its approval.
Geiger is now taking the development project — distinct from the remediation
project — through the entitlement process, and has submitted a site plan to
Planning for review and approval. The Developer has funded the preparation of
an Environmental Impact Report (EIR) based on the traffic demand of a new
shopping center and the normal environmental impacts of a retail center.
The purpose of the three enclosed agreements are as follows: (1) The License for
Performance of Remediation Work allows the Developer access to the Agency-
owned parcel during the remediation period, which will commence this month. It is
important to allow early access to the Agency site because the Removal Action
Workplan ("RAW")was approved irrespective of property lines, since ultimately the
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developer will own the entire site; (2) the Second Amended and Restated
Exclusive Agreement allows the developer to enough time to continue to proceed
with entitling the shopping center and with the expensive remediation project
without fear that he would lose his negotiating position with the Agency; and, (3)
the monitoring contract with Dudek, who is also the City's EIR consultant on the
project, allows the Agency to receive professional expertise and information
relative to the remediation of its own parcels, since the Agency will be a property
owner through most of the remediation.
The purpose of the early entry to the site is twofold: the main tenant is expecting a
developable pad to be delivered in 2004, which could not be accomplished if the
remediation commenced after the approval of the Disposition and Development
Agreement ("DDA"); and, the remediation contractors need to try to perform as
much work during the cool months because the workers are on the site will be clad
in Tyvek protective suits, which get very hot even in cool weather. While a draft
DDA has begun to be prepared, the DDA cannot be approved by the Agency until
the development project — as distinct from the remediation project — is ready to
receive its CEQA certification, either the approval of a Negative Declaration or an
EIR. The License is an effective early-entry mechanism, but the Developer
absorbs the risk that, for whatever reason, the project does not proceed to a DDA.
In 2001 Geiger asked for an Exclusive Agreement to Negotiate for a period of up
to 180 days (it was approved in 2002), during which it would complete the market
study and the preliminary remediation engineering, as well as commence the
process of obtaining entitlements for a project. The company met all of the
milestones of that Agreement, which expired in September 2002; an Amended &
Restated Agreement was approved in April 2003 for a period of a year. They have
continued to invest in the project, including getting to DTSC approval, acquiring
the privately-owned parcels, and negotiating leases with tenants, based on their
faith that their continued good performance would gain them additional time from
the Agency.
Staff is recommending, based on the significant progress made by the Developer,
that the Agency extend the Agreement for an additional three years to correspond
with the development CEQA timetable, which should be complete (barring any
significant challenges) by October, 2004 with another several months for
contingencies. By that point, the Developer will be through the entitlement
process and the DDA which will convey to Agency's property to the Developer will
be before the Agency for approval. Because the Agency cannot protect the
Developer's substantial investment through the License Agreement, the additional
term of the negotiating agreement beyond the entitlement phase ensures the
remediation investors and lenders that the Developer has a substantial deal with
the Agency and that, but for the provisions of Redevelopment Law that do not
allow the DDA to be approved prior to the CEQA action, the DDA would go forward
for approval and the Developer would have fee title to the parcel prior to
commencing remediation.
The third action is the approval of a contract for the independent monitoring of the
remediation with Dudek & Associates, Inc., the firm that is currently under contract
with the City of Palm Springs to prepare the required Environmental Impact Report
("EIR") for the development project. To protect the Agency's ownership interests
relative to the on-site work taking place during the expected three to five month
period of remediation, it is recommended that the Agency retain the services of an
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environmental engineering firm to monitor the Developer's clean-up activities on
the Agency-owned portion of the site.
In addition, the Agency-owned property comprises a relatively small percentage of
the site area that will be utilized during the remediation activities, and it is,
therefore, not necessary to have a full-time monitoring presence at the Agency-
owned site. The required remediation activities that do take place on Agency-
owned property will occur on a sporadic basis throughout the expected three to
five month clean-up period and Dudek would be responsible for coordinating its
on-site visits to coincide with those times during which the Developer's
remediation contractor would be doing the bulk of its work on Agency-owned
property. Dudek has proposed that the most cost-effective manner to
accommodate these monitoring services is to allow for up to thirty (30) all-day site
visits, which is deemed sufficient to provide the necessary monitoring services
required by the Agency. The Agency would be billed on a monthly basis for only
those site visits that are actually required to provide adequate monitoring services
to the Agency.
Given Dudek's familiarity with the site as a result of its EIR work, and its ability to
provide the required remediation monitoring services in a cost-effective manner
based upon the minimum number of required site visits, it is recommended that the
Agency approve a contract services agreement with Dudek & Associates, Inc. not
to exceed $28,870 for the required remediation monitoring services on the
Agency-owned portion of the site.
J HN S. RAYMON
I ector f Commi7nity and Economic Development
APPROVED
Executive Director
ATTACHMENTS:
1. Resolution Approving Agreement to Negotiate
2. Resolution Approving License Agreement
3. Resolution Approving Monitoring Contract
4. Agreement to Negotiate
5. License Agreement
6. Monitoring Contract
SECOND AMENDED AND RESTATED
EXCLUSIVE AGREEMENT TO NEGOTIATE
WITH GEIGER, LLC FOR THE
DEVELOPMENT OF A SHOPPING CENTER
THIS SECOND AMENDED AND RESTATED EXCLUSIVE AGREEMENT TO
NEGOTIATE ("Agreement") is made this day of
2004, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF
PALM SPRINGS ("Agency") and GEIGER, LLC ("Developer").
RECITALS
The parties enter into this Agreement on the basis of the following facts, understandings,
and intentions:
A. The Agency is a public body, corporate and politic, exercising
governmental functions and powers and organized and existing under the Community
Redevelopment Law of the State of California (Health and Safety Code Sections 33000, et
seq.).
B. The Agency desires to effectuate the Redevelopment Plan for
Redevelopment Project Area No. 4, now a part of Merged Project Area #1, by providing for the
development of a regional retail shopping center featuring a "big box" retail user within a portion
of the approximately 38-acre vacant property at the northeast corner of Gene Autry Trail and
Ramon Road ("Shopping Center") in the City of Palm Springs, California ("City").
C. The Developer is experienced in shopping center development and
remediating sites subject to environmental contamination and has dealt with the major tenants
who might occupy the Shopping Center.
D. On April 14, 2002, and on April 17, 2003, Developer and Agency
executed the "Exclusive Agreement to Negotiate" and "Amended & Restated Exclusive
Agreement to Negotiate", respectively ("Prior Agreements"). During the period of the Prior
Agreements, the Developer prepared a Remedial Action Workplan (RAW) with adequate
environmental review of the site conditions, including prior soil contamination issues creating
significant remediation costs, and submitted the plan to the Riverside County Department of
Environmental Health (the Local Enforcement Agency for the California Integrated Waste
Management Board) and the California Department of Toxic Substances Control ("DTSC"),
which became the lead agency for the project. On January 20, 2004, the 30-day comment
period for public review of the Plan under the auspices of DTSC closed, and on March 4, 2004
DTSC issued to the Developer a Notice to Proceed with the remediation activity under DTSC
oversight and authority(California Health & Safety Code § 33459.1(a)(1)).
E. The Developer has completed the remediation approval process in or about July
2003. Pursuant to the Prior Agreement, Developer has submitted development plans for the
Shopping Center to the City, the City is currently receiving proposals for a consultant to prepare
the Environmental Impact Report ("EIR") for the Shopping Center, and the Agency has
completed an appraisal of the Shopping Center Site. All the parties believe that
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due diligence period is necessary before a Disposition and Development Agreement that would
lead to the purchase of the Shopping Center Site may be negotiated and executed.
F. The Agency and Developer desire, for the period set forth herein, to continue
negotiating diligently in and in good faith to prepare an agreement ("DDA") whereby the
Developer would develop the Shopping Center Site as a major regional power center.
NOW, THEREFORE, and in consideration of the mutual covenants contained herein,
parties mutually agree to the following:
SECTION 1. NATURE OF NEGOTIATIONS.
A. Good Faith. The Agency and the Developer agree that, for the period set forth in
Section 2 herein, they will negotiate diligently and in good faith to prepare and enter into a DDA
that is consistent with the provisions of this Agreement for the development of the Shopping
Center ("Project") on the "Site" specified in Section I.B. hereof. The development will be subject
to all rules, regulations, standards, and criteria set forth in the Agency's Redevelopment Plan,
the City's General Plan, applicable specific plans and zoning regulations, and this Agreement.
The DDA will generally be in the form negotiated by the Agency with other development entities
subject to the terms the Agency and Developer mutually agree upon.
B. Site. The Project shall be located upon all or a portion of the real property
designated as the "Shopping Center" or the "Site", as shown in the "Site Map," attached hereto
as Exhibit "A" and incorporated herein by this reference. The Site is divided into two
ownerships, herein designated as the "Agency Parcel" and the "Epsteen Parcel". It is
anticipated that the Project will be developed in phases.
The Developer has a related Limited Liability Corporation close on a purchase of the
Epsteen Parcel in September 2003.
There is a five (5) foot strip on the Site which is located in the City of Cathedral City
("Cathedral City Property"). Developer acquired the Cathedral City Property in 2003, and is
responsible for resolving access and encroachment issues concerning the Property.
C. Nature of Shopping Center and Ownership. Pursuant to the DDA, the
Developer must acquire a fee interest in the Site. The design of the Project shall be consistent
with the Agency and City's design guidelines. Developer shall also obtain architectural review
for the Project from the City's Design Review Board. The Developer is solely responsible for
obtaining all approvals and entitlements for the Project, arranging the financing for the Project,
and constructing all improvements upon the Site.
The Shopping Center shall be a "power center" with a major tenant big box retailer
occupying at least 100,000 square feet, as well as ancillary retail tenants to include uses such
as general merchandise, food, theaters, home improvement, clothing, electronics, sports,
restaurants, and similar uses. In the event that, after diligent good faith efforts, the Developer
cannot obtain a commitment from a big box user such as Home Depot, Costco or a similar user,
Developer may propose alternative smaller major tenants in a mixed retail use designed to
produce significant sales tax. It is anticipated that the construction cost of the Project will
exceed $8,000,000.
D. Soils. The Agency has disclosed all information it has concerning the
condition of the soils on the Site, which soils contain contamination and require remediation.
Developer agrees to acquire the Site in an "as is" condition such that Agency shall and will not
retain liability for any soils conditions on the Site following the remediation and sale of the Site.
It shall be the sole obligation of the Developer to investigate the Site and develop a remediation
plan which can be implemented by Developer within the Project economics; nonetheless, the
remediation plan is subject to approval by the Agency, which approval shall not be
unreasonably withheld.
Agency may apply for financial assistance from the state or federal government to assist
Developer with the remediation of the contaminated portion of the Site, but it shall be the
Developer's responsibility to finance and undertake the remediation of the Site. The Agency
and Developer, together with the County of Riverside Department of Environmental Health,
have determined that a "partial clean closure" of the Site may be the most practical approach,
and that California Health & Safety Code § 33459.1 (a)(1) allows redevelopment agencies to
"take any actions that the agency determines are necessary and that are consistent with other
state and federal laws to remedy or remove a release of hazardous substances on, under, or
from property within a project area, whether the agency owns that property or not," thereby
creating additional authority to clean the Site, which the Agency may utilize to assist Developer
in accomplishing the remediation. Developer acknowledges that the Agency will not have any
obligation to utilize any public resources except those it may receive from the state or federal
government for the specific purpose of remediating the Site.
Developer will investigate and determine if it will decline to acquire any portion of the
Site which cannot be adequately mitigated, prior to the expiration of this Agreement. Developer
has prepared a Remedial Action Plan ("RAP") which has been submitted to the County of
Riverside Health Services Agency ("County") as the lead agency for the Site's remediation and
the California Department of Toxic Substances Control. Developer will obtain all necessary
permits from the County.
The Project shall be planned to take advantage of the immunity provisions of the California
Polanco Redevelopment Act ("Polanco"), Health & Safety Code §33459.01, et seq. Polanco
provides broad immunity from further cleanup work in connection with release(s) properly
addressed through an approved cleanup plan:
1. The immunity in H&SC § 33459.3 encompasses cleanup liability arising under
the Water Code, and California's RCRA, underground tank, and superfund
programs, as well as "any other state or local law providing liability for remedial
or removal actions for releases of hazardous substances," H&SC § 33459.3(a).
Z It protects the redevelopment agency, redevelopers of contaminated property,
successors in title to either of the foregoing, and their financiers. H&SC §
33459.3(e).
E. Additional Environmental Considerations. Developer's geological and
geotechnical engineering report has concluded that the Project is geotechnically feasible,
provided that the recommendations contained in the report are incorporated into the final design
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and construction phase of the proposed structure. The parties acknowledge that Developer
may revise the geological and geotechnical reports.
Developer has performed a complete traffic study for the site which concluded that the
area roadways will generally continued to operate at acceptable levels.
F. Financial Provisions. Developer shall acquire a fee interest in all or a portion of
the Site at a price to be agreed upon by the parties with the actual net usable square footage
determined through survey and with an offset for remediation costs. The parties further agree
to the following:
1. Developer will have the option to acquire the Site for $1,000,000.
Developer will assign this option to the Agency pursuant to a separate agreement.
2. Developer shall be responsible for funding the cost of any condemnation
action, if necessary.
3. Developer shall be responsible for financing and constructing all
improvements.
4. Developer shall pay for all necessary public improvements and pay all of
City's fees incurred in processing the Project, without assistance from the Agency.
5. Nothing in this agreement shall be construed to be contrary to the
provisions of Health & Safety Code Section 33426.5, which states:
"Notwithstanding the provisions of Sections 33391, 33430, 33433, and 33445, or
any other provision of this part, an agency shall not provide any form of direct assistance
to:
(b) (1) A development that will be or is on a parcel of land of five
acres or more which has not previously been developed for urban use
and that will, when developed, generate sales or use tax pursuant to Part
1.5 (commencing with Section 7200) of Division 2 of the Revenue and
Taxation Code, unless the principal permitted use of the development is
office, hotel, manufacturing, or industrial, or unless, prior to the effective
date of the act that adds this section, the agency either owns the land or
has entered into an enforceable agreement, for the purchase of the land
or of an interest in the land, including, but not limited to, a lease or an
agreement containing covenants affecting real property, that requires the
land to be developed.
(2) For the purposes of this subdivision, a parcel shall include land
on an adjacent or nearby parcel on which a use exists that is necessary
for the legal development of the parcel.
(e) This section shall not be construed to apply to agency
assistance in the construction of public improvements that serve all or a
portion of a project area and that are not required to be constructed as a
condition of approval of a development described in subdivision (a), (b),
or (c), or to prohibit assistance in the construction of public improvements
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that are being constructed for a development that is not described in
subdivision (a), (b), or(c)."
6. Developer shall be responsible for all soils remediation costs for the Site.
7. The current projected remediation cost is $6,000,000 to $8,500,000.
8. The remediation costs for the Site shall offset the purchase price.
7. Developer's remediation costs for the Agency Parcel will be offset against
the purchase price for the Agency Parcel. The purchase price for the Epsteen Parcel
shall be $1,000,000.00.
8. The fair market value of the Agency Parcel and Epsteen Parcel after
remediation is $6.25/square foot. The Agency agrees to sell the Site to Developer for
$6.25/square foot, less the approved remediation costs.
The remediation offset shall not exceed the value of the property conveyed.
9. The Agency shall not provide financial assistance to the Project. The
remediation offset shall not be considered financial assistance.
H. Schedule. The goal will be to develop the Shopping Center for opening by the
Third Quarter of 2005, with an understanding that the opening of the Project may be phased. A
Schedule of Performance during the term of this Agreement is attached hereto as Exhibit "B"
and is incorporated herein by this reference. The DDA shall also contain a Schedule of
Performance. Due to the need to possibly acquire certain parcels through condemnation or
environmental enforcement actions under the Polanco Redevelopment Act title to the parcels
may be delivered in phases upon mutually agreeable terms.
I. Use, Transfer, and Maintenance Restrictions. The DDA will generally be
subject to restrictions on use and transfer during construction and for a specified period
thereafter (i) to assure that the use will be consistent with and promote the Redevelopment
Plan, (ii) to protect the character of the Project and to provide an adequate long-term financial
return, (iii) to prevent speculation, and (iv) to assure that any transferee has the resources,
capability, and experience to successfully operate the Shopping Center. In addition, restrictions
shall be recorded to assure proper maintenance of landscaping and improvements.
J. Property Acquisition. To the extent permitted by law, the DDA will contain
provisions that the Agency may consider the use of its power of eminent domain for site
assemblage should voluntary negotiations be unsuccessful.
SECTION 2. PERIOD OF NEGOTIATIONS
A. Period of Exclusive Negotiation. The period of negotiation shall be three (3)
years from the date this Agreement is signed by the Agency, except as otherwise provided
herein (the "Term").
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B. Early Termination. If Developer is found to be in default for Developer's failure
to comply with any term or condition of this Agreement, to acquire and maintain all required
insurance policies, bonds, licenses, and permits, or failure to make satisfactory progress in
performing the Agreement, Agency may give thirty (30) days' written notice of the termination
and the reasons therefore to Developer if Developer. Upon termination under this provision, all
goods, materials, documents, data and reports prepared by Licensee under this Agreement
shall become the property and be delivered to the Agency on demand.
C. Extension of Time Agreement. This Agreement may be extended as follows:
1. For sixty (60) days, if within the Term a DDA has been prepared by the Agency
and executed by the Developer and has been submitted to the Agency but has not yet been
approved by the Agency's Board of Directors; or
2. For thirty (30) days if within the Term the parties have agreed on the major
business terms have been agreed to and the Executive Director of the Agency reasonably
determines that further negotiations are likely to result in a DDA; or
3. By mutual agreement of the parties, as evidenced in writing.
D. Agency Approval. Developer understands and acknowledges that if
negotiations culminate in a DDA, such DDA shall be effective only after and if the agreement
has been considered and approved by the Agency Board after public hearing thereon as
required by law.
SECTION 3. DEVELOPER'S RESPONSIBILITIES.
During the period of negotiation, Developer will prepare such studies, reports, and
analysis as shall be necessary to permit Developer to determine the feasibility of the Project.
During the period of negotiation, and as requested by the Agency, the Developer shall submit to
the Agency the following:
A. Full disclosure of Developer's principals, partners, joint venturers, negotiators,
consultants, professional employees, or other associates of the Developer who are participants
or principals of the Project, and all other relevant information concerning the above.
B. Statement of financial condition in sufficient detail to demonstrate Developer's
financial capabilities, those of its principals, partners, joint ventures, and those of its prospective
developers to satisfy the commitments necessitated by the Project, including all information
necessary to demonstrate the availability of construction and permanent financing. To the
extent Developer wants such financial statements to remain confidential; they shall be supplied
to and maintained by the Agency in confidence to the extent permitted by law.
C. All information necessary for the design of the Project to meet the Agency's
reasonable requirements. This information shall be sufficient to allow Agency to evaluate site
configuration, architectural design and similar issues.
D. All Information necessary to show tenant availability and interest, the nature of
the proposed tenants, and the financial strength and resources of the tenants. To the extent
Developer wants such information to remain confidential; they shall be supplied to the Agency
only if confidentiality can be maintained.
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E. The Developer shall negotiate exclusively with the Agency's negotiating team
and with no other persons unless expressly authorized to do so by the Agency's negotiating
team. During the period of negotiations, no statements will be made by the Developer or Agency
to the media without the approval of the Agency's negotiating team. No prepared statements
shall be released to the media without the mutual consent of the respective negotiating teams.
SECTION 4. AGENCY'S RESPONSIBILITIES.
A. Agency Assistance. The Agency shall cooperate fully in providing Developer
with appropriate information and assistance, but such assistance shall not include financial
assistance unless specifically provided herein.
B. Preparation of Agreement. If agreement is reached on the business terms for
inclusion in the DDA, the Agency shall prepare such DDA for consideration by the Developer.
Agency's expenses incurred in connection with the preparation of the DDA shall be absorbed by
Agency.
C. California Environmental Quality Act. The Agency will assist Developer to the
fullest extent possible in preparing any necessary environmental documentation for the Project.
SECTION 5. MISCELLANEOUS.
A. No Commissions. The Agency shall not be liable for any real estate
commission or any broker's fees which may arise in relation to the Project. The Agency
represents that it has engaged no broker, agent, or finder in connection with this transaction,
and the Developer agrees to hold the Agency harmless from any claim by any broker, agent, or
finder retained by the Developer.
B. Ownership of Documents. If the negotiations contemplated by this Agreement
do not result in the execution of an agreement, Developer shall transfer to Agency copies of any
reports, studies, analysis, site plan layouts, engineering studies, memorandums, or similar
documents regarding the proposed development which were prepared during the period of
negotiations (except tenant information and proformas), which documents shall become the
property of Agency. Such transfer shall be made without any representation or warranty by the
Developer as to the accuracy or sufficiency of the contents of such documents and shall be
made subject to the rights of the preparers of such documents including, without limitation, the
copyrights (if any) associated with such documents.
C. Purpose of Contract. It is expressly understood and agreed by the parties that
this is an Agreement regarding the conduct of contract negotiations only and does not convey
any interest in the Site whatsoever. It is further agreed and understood that this Agreement
does not imply any obligation on the part of either party to enter into any agreement that may
result from the negotiations contemplated herein.
D. Corporate Authority. The persons executing this Agreement on behalf of the
parties hereto warrant that (i) such party is duty 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)
entering into this Agreement does not violate any provision of any other Agreement to which
said party is bound.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day first
above written.
"AGENCY"
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS, a
public body, corporate and politic
By:
Chairman
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
Agency Counsel
"DEVELOPER"
GEIGER, LLC
By:
Signature
Print Name:
Print Title:
By:
Signature
Print Name:
Print Title:
Mailing Address:
9171 Wilshire Boulevard
Beverly Hills, CA 92210
Attn:
(All Signatures must be notarized.)
Exhibit"B"
SCHEDULE OF PERFORMANCE
1/30/04 Applicant provides revised site plan and project description
2/04/04 Applicant provides revised grading plan
2/29/04 ProjectTraffic Engineer provides revised traffic study
3/04/04 Applicant provides site remediation program approved by DTSC
3/12/04 City Engineer completes review of traffic study
3124/04 Project Engineer provides revised air quality and noise studies
3/29/04 City completes review of air and noise study
4/05/04 Dudek provides Draft EIR screen check draft to city
4/12/04 City returns Draft EIR comments to Dudek
4/26/04 Dudek publishes Draft EIR, mails to state clearinghouse (45 days)
6/01/04 Applicant submits building plans (at risk)for concurrent plan check
6/09/04 Planning Commission Public Hearing (scoping) on DEIR (6/23/04)
6/11/04 CEQA 45 day review period of Draft EIR closes
6/25/04 Dudek to provide Final EIR screen check draft to city
7/02/04 City returns Final EIR comments to Dudek
7/02/04 Applicant submits precise grading plans (at risk)for concurrent plan check
7/14/04 Planning Commission Public Hearing
7/16/04 Dudek publishes Final EIR, mails to state clearinghouse (10 days)
8104/04 City Council Public Hearing (8/18/04)
8/04/04 Agency approves the Disposition and Development Agreement
8/05/04 Notice of Determination filed with Riverside County Clerk (30 days)
8/06/04 Applicant pulls building permits
9/04/04 End of NOD 30 day review period
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS
• CONTRACT SERVICES AGREEMENT
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered
into this_day of 2004, by and between the COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS,a public body corporate and politic,(herein"Agency')
and DUDEK & ASSOCIATES, INC. (herein "Contractor '). The term Contractor includes
professionals performing in a consulting capacity. The parties hereto agree as follows:
1.0 SERVICES OF CONTRACTOR
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, the Contractor shall provide those services specified in the "Scope of Services"
attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be
referred to herein as the "services" or"work" hereunder. As a material inducement to the Agency
entering into this Agreement, Contractor represents and warrants that Contractor is a providerof first
class work and services and Contractor is experienced in performing the work and services
contemplated herein and, in light of such status and experience, Contractor covenants that it shall
follow the highest professional standards in performing the work and services required hereunder
and that all materials will be of good quality, fit for the purpose intended. For purposes of this
Agreement, the phrase "highest professional standards" shall mean those standards of practice
recognized by one or more first-class firms performing similar work under similar circumstances.
1.2 Contractor's Proposal. The Scope of Service shall include the Contractor's
proposal or bid which shall be incorporated herein by this reference as though fully set forth herein.
• In the event of any inconsistency between the terms of such proposal and this Agreement,the terms
of this Agreement shall govern.
1.3 Compliance with Law. All services rendered hereunder shall be provided in
accordance with all ordinances, resolutions, statutes, rules and regulations of the City of Palm
Springs and any Federal, State or local governmental agency having jurisdiction in effect at the time
service is rendered.
1.4 Licenses, Permits. Fees and Assessments. Contractor shall obtain at its sole
cost and expense such licenses, permits and approvals as may be required by law for the
performance of the services required by this Agreement. Contractor shall have the sole obligation to
pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be
imposed by law and arise from or are necessary for the Contractor's performance of the services
required by this Agreement, and shall indemnify, defend and hold harmless Agency against any
such fees, assessments, taxes, penalties or interest levied, assessed or imposed against Agency
hereunder.
1.5 Familiarity with Work. By executing this Contract, Contractor warrants that
Contractor(a)has thoroughly investigated and considered the scope of services to be performed(b)
has carefully considered how the services should be performed and (c) fully understands the
facilities, difficulties and restrictions attending performance of the services underthis Agreement. If
the services involve work upon any site, Contractor warrants that Contractor has,or will, investigate
the site and is or will be fully acquainted with the conditions there existing, prior to commencement
of services hereunder. Should the Contractor discover any latent or unknown conditions,which will
materially affect the performance of the services hereunder, Contractor shall immediately inform the
Agency of such fact and shall not proceed except at Contractor's risk until written instructions are
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e yy y
received from the Contract Officer.
1.6 Care of Work. The Contractor shall adopt reasonable methods during the •
life of the Agreement to furnish continuous protection to the work, and the equipment, materials,
papers, documents, plans, studies and/or other components thereof to prevent losses ordamages,
and shall be responsible for all such damages,to persons or property,until acceptance of the work
by Agency, except such losses or damages as may be caused by Agency's own negligence.
1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care
and diligence to perform their respective obligations under this Agreement. Both parties agree to act
in good faith to execute all instruments, prepare all documents and take all actions as may be
reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified,
neither party shall be responsible for the service of the other.
1.8 Additional Services. Agency shall have the right at any time during the
performance of the services, without invalidating this Agreement, to order extra work beyond that
specified in the Scope of Services or make changes by altering, adding to or deducting from said
work. No such extra work may be undertaken unless a written order is first given by the Contract
Officer to the Contractor, incorporating therein any adjustment in(i)the Contract Sum,and/or(ii)the
time to perform this Agreement, which said adjustments are subject to the written approval of the
Contractor. Any increase in compensation of up to ten percent (10%) of the Contract Sum or
$25,000;whichever is less,or in the time to perform of up to one hundred eighty(180)days may be
approved by the Contract Officer. Any greater increases, taken either separately or cumulatively
must be approved by the Agency. It is expressly understood by Contractor that the provisions of this
Section shall not apply to services specifically set forth in the Scope of Services or reasonably
contemplated therein. Contractor hereby acknowledges that it accepts the risk that the services to
be provided pursuant to the Scope of Services may be more costly or time consuming than •
Contractor anticipates and that Contractor shall not be entitled to additional compensation therefore.
1.9 Special Requirements. Additional terms and conditions of this Agreement,
if any, which are made a part hereof are set forth in the"Special Requirements"attached hereto as
Exhibit `B" and incorporated herein by this reference. In the event of a conflict between the
provisions of Exhibit'B"and any other provisions of this Agreement, the provisions in Exhibit'B"
shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement,the
Contractor shall be compensated in accordance with the "Schedule of Compensation" attached
hereto as Exhibit "C" and incorporated herein by this reference, but not exceeding the maximum
contract amount of twenty-eight thousand eight hundred and seventy dollars ($28,870,00)(herein
"Contract Sum"), except as provided in Section 1.8. The method of compensation may include(i)a
lump sum payment upon completion,(ii)payment in accordance with the percentage of completion
of the services, (iii)payment for time and materials based upon the Contractors rates as specified in
the Schedule of Compensation, but not exceeding the Contract Sum or(iv)such other methods as
maybe specified in the Schedule of Compensation. Compensation may include reimbursement for
actual and necessary expenditures for reproduction costs, telephone expense, transportation and
per diem expense approved by the Contract Officer in advance, and no other expenses and only if
specified in the Schedule of Compensation. The Contract Sum shall include the attendance of
Contractor at all project meetings reasonably deemed necessary by the Agency;Contractor shall not
be entitled to any additional compensation for attending said meetings. •
2.2 Method of Payment. Unless some other method of payment is specified in
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the Schedule of Compensation, in any month in which Contractor wishes to receive payment, no
later than the first(1")working day of such month, Contractor shall submit to the Agency in the form
• approved by the Agency's Director of Finance, an invoice for services rendered prior to the date of
the invoice. Except as provided in Section 7.3,Agency shall pay Contractor for all expenses stated
thereon which, are approved by Agency pursuant to this Agreement no later than the last working
day of the month.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this
Agreement.
3.2 Schedule of Performance. Contractor shall commence the services pursuant
to this Agreement upon receipt of a written notice to proceed and shall perform all services within
the time period(s)established in the "Schedule of Performance"attached hereto as Exhibit"D", if
any, and incorporated herein by this reference. When requested by the Contractor, extensions to
the time period(s) specified in the Schedule of Performance may be approved in writing by the
Contract Officer but not exceeding one hundred eighty(180) days cumulatively.
3.3 Force Majeure. The time period(s)specified in the Schedule of Performance
for performance of the services rendered pursuant to this Agreement shall be extended because of
any delays due to unforeseeable causes beyond the control and without the fault or negligence of
the Contractor, including, but not restricted to,acts of God or of the public enemy, unusually severe
weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight
embargoes, wars, litigation, and/or acts of any governmental agency, including the Agency, if the
Contractor shall within ten(10)days of the commencement of such delay notify the Contract Officer
in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of
• delay, and extend the time for performing the services for the period of the enforced delaywhen and
if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination
shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be
entitled to recover damages against the Agencyfor any delay in the performance of this Agreement,
however caused, Contractor's sole remedy being extension of the Agreement pursuant to this
Section.
3.4 Term. Unless earlier terminated in accordance with Section 7.8 of this
Agreement, this Agreement shall continue in full force and effect until completion of the services but
not exceeding two(2)years from the date hereof, except as otherwise provided in the Schedule of
Performance (Exhibit"D").
4.0 COORDINATION OF WORK
4.1 Representative of Contractor. The following principals of Contractor are
hereby designated as being the principals and representatives of Contractor authorized to act in its
behalf with respect to the work specified herein and make all decisions in connection therewith:
Derek M. Reed, P.E., Senior Engineer
It is expressly understood that the experience, knowledge, capability and reputation of the
foregoing principals were a substantial inducement for Agency to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for
directing all activities of Contractor and devoting sufficient time to personally supervise the services
hereunder. For purposes of this Agreement,the foregoing principals may not be replaced nor may
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their responsibilities be substantially reduced by Contractor without the express written approval of
Agency.
4.2 Contract Officer. The Contract Officer shall be such person as may be •
designated by the Agency Executive Director. It shall be the Contractor's responsibility to assure
that the Contract Officer is kept informed of the progress of the performance of the services and the
Contractor shall refer any decisions which must be made by Agency to the Contract Officer. Unless
otherwise specified herein, any approval of Agency required hereunder shall mean the approval of
the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the
Agency required hereunder to carry out the terms of this Agreement.
4.3 Prohibition Against Subcontracting or Assignment. The experience,
knowledge,capability and reputation of Contractor, its principals and employees were a substantial
inducement for the Agency to enter into this Agreement. Therefore, Contractor shall not contract
with any other entity to perform in whole or in part the services required hereunder without the
express written approval of the Agency. In addition, neither this Agreement nor any interest herein
may be transferred,assigned, conveyed, hypothecated or encumbered voluntarily or by operation of
law, whether for the benefit of creditors or otherwise, without the prior written approval of Agency.
Transfers restricted hereunder shall include the transfer to any person or group of persons acting in
concert of more than twenty five percent (25%) of the present ownership and/or control of
Contractor, taking all transfers into account on a cumulative basis. In the event of any such
unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No
approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder
without the express consent of Agency.
The Agency s policy is to encourage the awarding of subcontracts to persons or entities with
offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are
available,to persons or entities with offices located in the Coachella Valley("Local Subcontractors"). .
Contractor hereby agrees to use good faith efforts to award subcontracts to Local Subcontractors,if
Local Subcontractors are qualified to perform the work required. In requesting for the Agency to
consent to a subcontract with a person or entity that is not a Local Subcontractor, the Contractor
shall submit evidence to the Agency that such good faith efforts have been made or that no Local
Subcontractors are qualified to perform the work. Said good faith efforts may be evidenced by
placing advertisements inviting proposals or by sending requests for proposals to selected Local
Subcontractors. The Agency may consider Contractor's efforts in determining whether it will consent
to a particular subcontractor. Contractor shall keep evidence of such good faith efforts and copies
of all contracts and subcontracts hereunder for the period specified in Section 6.2.
4.4 Independent Contractor. Neither the Agency nor any of its employees shall
have any control over the manner, mode or means by which Contractor, its agents or employees,
perform the services required herein, except as otherwise set forth herein. Agency shall have no
voice in the selection, discharge, supervision or control of Contractor's employees, servants,
representatives or agents, or in fixing their number, compensation or hours of service. Contractor
shall perform all services required herein as an independent contractor of Agency and shall remain
at all times as to Agency a wholly independent contractor with only such obligations as are
consistent with that role. Contractor shall not at anytime or in any manner represent that it or any of
its agents or employees are agents or employees of Agency. Agency shall not in anyway or for any
purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint
venturer or a member of any joint enterprise with Contractor.
•
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5.0 INSURANCE, INDEMNIFICATION AND BONDS
• 5.1 Insurance. The Contractorshall procure and maintain,at its sole cost and
expense, in a form and content satisfactory to Agency, during the entire term of this Agreement
including any extension thereof, the following policies of insurance:
(a) Commercial General Liability Insurance. A policy of commercial general
liability insurance written on a per occurrence basis with a combined single limit of at least
$1,000,000 bodily injury and property damage including coverages for contractual liability,
personal injury, independent contractors, broad form property damage, products and
completed operations. The Commercial General Liability Policy shall name the Agency as
additional insured in accordance with standard ISO additional insured endorsement form
CG2010(1185) or equivalent language.
(b)Worker's Compensation Insurance. A policy of worker's compensation
insurance in an amount which fully complies with the statutory requirements of the State of
California and which includes $1,000,000 employer's liability.
(c)Business Automobile Insurance.A policy of business automobile liability
insurance written on a per occurrence basis with a single limit liability in the amount of
$1,000,000 bodily and property damage. Said policy shall include coverage for owned,non-
owned, leased and hired cars.
(d)Additional Insurance. Additional limits and coverages,which may include
professional liability insurance, will be specified in Exhibit"B".
All of the above policies of insurance shall be primary insurance and issued by companies
• whose rating satisfies the requirements in Section 5.4 of this agreement. The insurer shall waive all
rights of subrogation and contribution it may have against the Agency, its officers, employees and
agents, and their respective insurers. In the event any of said policies of insurance are canceled,the
Contractor shall,prior to the cancellation date,submit new evidence of insurance in conformance with
this Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence
until the Contractor has provided the Agency with Certificates of Insurance, endorsements or
appropriate insurance binders evidencing the above insurance coverages and said Certificates of
Insurance, endorsements, or binders are approved by the Agency.
The contractor agrees that the provisions of this Section 5.1 shall not be construed as limiting
in anywaythe extent to which the Contractor may be held responsible forthe payment of damages to
any persons or property resulting from the Contractor's activities or the activities of any person or
person for which the Contractor is otherwise responsible.
In the event the Contractor subcontracts any portion of the work in compliance with Section 4.3
of this Agreement the contract between the Contractor and such subcontractor shall require the
subcontractor to maintain the same polices of insurance that the Contractor is required to maintain
pursuant to this Section.
5.2 Indemnification. Contractor agrees to indemnify the Agency, its officers,agents
and employees against, and will hold and save them, and each of them, harmless from any and all
actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors,
omissions or liabilities, (herein "claims or liabilities")that may be asserted or claimed by any person,
firm or entity arising out of or in connection with the negligent performance of the work, operations or
activities of Contractor, its agents, employees, subcontractors, or invitees, provided for herein, or
arising from the negligent acts or omissions of Contractor hereunder, or arising from Contractor's
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negligent performance of or failure to perform any term, provision, covenant or condition of this
Agreement,whether or not there is concurrent passive or active negligence on the part of the Agency,
its officers, agents or employees but excluding such claims or liabilities arising from the sole •
negligence or willful misconduct of the Agency, its officers, agents or employees, who are directly
responsible to the Agency, and in connection therewith:
(a) Contractor will defend any action or actions filed in connection with
any of said claims or liabilities and will pay all costs and expenses, including legal costs and
attorneys'fees incurred in connection therewith;
(b) Contractorwill promptly payanyjudgment rendered against the Agency,
its officers,agents or employees for any such claims or liabilities arising out of or in connection
with the negligent performance of or failure to perform such work, operations or activities of
Contractor hereunder; and Contractor agrees to save and hold the Agency,its officers,agents,
and,employees harmless therefrom;
(c) In the event the Agency, its officers, agents or employees are made a
party to any action or proceeding filed or prosecuted against Contractor for such damages or
other claims arising out of or in connection with the negligent performance of or failure to
perform the work,operation or activities of Contractor hereunder, Contractor agrees to pay to
the Agency, its officers,agents or employees,any and all costs and expenses incurred by the
Agency, its officers, agents or employees in such action or proceeding, including but,not
limited to, legal costs and attomeys'fees.
5.3 Performance Bond. Concurrently with execution of this Agreement,Contractor
shall deliver to Agency a performance bond in the sum of the amount of this Agreement, in the form
provided by the Agency, which secures the faithful performance of this Agreement, unless such •
requirement is waived by the Contract Officer. The bond shall contain the original,notarized signature
of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his
power of attorney. The bond shall be unconditional and remain in force during the entire term of the
Agreement and shall be null and void only if the Contractor promptly and faithfully performs all terms
and conditions of this Agreement.
5.4 Sufficiency of Insurer or Suretv. Insurance or bonds required by this Agreement
shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or
better in the most recent edition of Best's Key Rating Guide or in the Federal Register, unless such
requirements are waived by the Agency Executive Director or designee of the Agency Executive
Director due to unique circumstances. In the event the Agency Executive Director determines that the
work or services to be performed under this Agreement create an increased or decreased risk of loss
to the Agency, the Contractor agrees that the minimum limits of the insurance policies and the
performance bond required by this Section 5 may be changed accordingly upon receipt of written
notice from the Agency Executive Director or designee; provided that the Contractor shall have the
right to appeal a determination of increased coverage by the Executive Director to the Agency within
ten (10) days of receipt of notice from the Executive Director.
6.0 REPORTS AND RECORDS
6.1 Reports. Contractor shall periodically prepare and submit to the Contract
Officer such reports concerning the performance of the services required by this Agreement as the
Contract Officer shall require. Contractor hereby acknowledges that the Agency is greatly concerned
about the cost of work and services to be performed pursuant to this Agreement. For this reason,
Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or
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events that mayor will materially increase or decrease the cost of the work or services contemplated
herein or, if Contractor is providing design services,the cost of the project being designed, Contractor
shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the
estimated increased or decreased cost related thereto and, if Contractor is providing design services,
the estimated increased or decreased cost estimate for the project being designed.
6.2 Records. Contractor shall keep, and require subcontractors to keep, such
books and records as shall be necessary to perform the services required by this Agreement and
enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall
have full and free access to such books and records at all times during normal business hours of
Agency, including the right to inspect, copy, audit and make records and transcripts from such
records. Such records shall be maintained for a period of three(3)years following completion of the
services hereunder, and the Agency shall have access to such records in the event any audit is
required
6.3 Ownership of Documents. All drawings, specifications, reports, records,
documents and other materials prepared by Contractor,its employees,subcontractors.and agents in
the performance of this Agreement shall be the property of Agency and shall be delivered to Agency
upon request of the Contract Officer or upon the termination of this Agreement. Contractor shall have
no claim forfurther employment or additional compensation as a result of the exercise by Agency of its
full rights of ownership of the documents and materials hereunder. Any use of such completed
documents for other projects and/or use of uncompleted documents without specific written
authorization by the Contractor will be at the Agency's sole risk and without liability to Contractor,and
the Agency shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain
copies of such documents for its own use. Contractor shall have an unrestricted right to use the
concepts embodied therein. All subcontractors shall provide for assignment to Agency any
documents or materials prepared by them, and in the event Contractor fails to secure such
assignment, Contractor shall indemnify Agency for all damages resulting therefrom.
6.4 Release of Documents. The drawings, specifications, reports, records,
documents and other materials prepared by Contractor in the performance of services under this
Agreement shall not be released publicly without the prior written approval of the Contract Officer.
7.0 ENFORCEMENT OF AGREEMENT
7.1 California Law. This Agreement shall be construed and interpreted both as to
validity and to performance of the parties in accordance with the laws of the State of California. Legal
actions concerning anydispute,claim or matter arising out of or in relation to this Agreement shall be
instituted in the Superior Court of the Countyof Riverside,State of California,oranyother appropriate
court in such county. Contractor covenants and agrees to submit to the personal jurisdiction of such
court in the event of such action.
7.2 Disputes. In the event of any dispute arising under this Agreement,the injured
party shall notify the injuring party, in writing, of its contentions by submitting a claim therefor. The
injured party shall continue performing its obligations hereunder so long as the injuring party
commences to cure such defaultwithin ten(10)days of service of such notice and completes the cure
of such default within forty-five (45)days after service of the notice, or such longer period as may be
permitted by the injured party; provided that if the default is an immediate danger to the health,safety
and general welfare, such immediate action may be necessary. Compliance with the provisions of this
Section shall be a condition precedent to termination of this Agreement for cause and to any legal
action, and such compliance shall not be a waiver of any party's right to take legal action in the event
• that the dispute is not cured, provided that nothing herein shall limit Agency's or the Contractor's right
to terminate this Agreement without cause pursuant to Section 7.8.
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7.3 Retention of Funds. Contractor hereby authorizes Agency to deduct from any
amount payable to Contractor (whether or not arising out of this Agreement) (i) any amounts the
payment of which may be in dispute hereunder or which are necessary to compensate Agencyfor any
losses, costs, liabilities,or damages suffered byAgency,and(ii)all amounts forwhich Agency may be
liable to third parties, by reason of Contractor's acts or omissions in performing or failing to perform
Contractor's obligation under this Agreement. In the event that any claim is made by a third party,the
amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall
appear to be the basis fora claim of lien,Agency maywithhold from any payment due,without liability
for interest because of such withholding, an amount sufficient to cover such claim. The failure of
Agency to exercise such right to deduct or to withhold shall not, however,affect the obligations of the
Contractor to insure, indemnify, and protect Agency as elsewhere provided herein.
7.4 Waiver. No delay or omission in the exercise of any right or remedy by a non-
defaulting party on any default shall impair such right or remedy or be construed as a waiver. A partys
consent to or approval of any act by the other party requiring the party s consent or approval shall not
be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent
act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other
default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative. Except with respect to rights and
remedies expressly declared to be exclusive in this Agreement,the rights and remedies of the parties
are cumulative and the exercise by either party of one or more of such rights or remedies shall not
preclude the exercise by it,at the same or different times,of any other rights or remedies forthe same
default or any other default by the other party.
7.6 Legal Action. In addition to any other rights or remedies,either party may take
legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any
default,to compel specific performance of this Agreement,to obtain declaratory or injunctive relief,or
to obtain any other remedy consistent with the purposes of this Agreement.
7.7 Liquidated Damages. Since the determination of actual damages for any delay
in performance of this Agreement would be extremely difficult or impractical to determine in the event
of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the
Agency the sum of ($ -None- ) as liquidated damages for each working day of delay in the
performance of any service required hereunder,as specified in the Schedule of Performance(Exhibit
"D"). The Agency may withhold from any monies payable on account of services performed by the
Contractor any accrued liquidated damages.
7.8 Termination Prior to Exoiration of Term. This Section shall govern any
termination of this Agreement except as specifically provided in the following Section for termination
for cause. The Agency reserves the right to terminate this Agreement at any time, with or without
cause, upon thirty(30)days written notice to Contractor, except that where termination is due to the
fault of the Contractor, the period of notice may be such shorter time as may be determined by the
Contract Officer. In addition, the Contractor reserves the right to terminate this Agreement at any
time, with or without cause, upon sixty (60) days written notice to Agency, except that where
termination is due to the fault of the Agency, the period of notice may be such shorter time as the
Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately
cease all services hereunder except as may be specifically approved by the Contract Officer. Except
where the Contractor has initiated termination,the Contractor shall be entitled to compensation for all
services rendered prior to the effective date of the notice of termination and for any services
authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or as •
may be approved by the Contract Officer, except as provided in Section 7.3, In the event the
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Contractor has initiated termination, the Contractor shall be entitled to compensation only for the
reasonable value of the work product actually produced hereunder. In the event of termination without
• cause pursuant to this Section, the terminating party need not provide the non-terminating party with
the opportunity to cure pursuant to Section 7.2.
7.9 Termination for Default of Contractor. If termination is due to the failure of the
Contractor to fulfill its obligations under this Agreement, Agency may, after compliance with the
provisions of Section 7.2, take over the work and prosecute the same to completion by contract or
otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the
services required hereunder exceeds the compensation herein stipulated (provided that the Agency
shall use reasonable efforts to mitigate such damages), and Agency may withhold any payments to
the Contractor for the purpose of set-off or partial payment of the amounts owed the Agency as
previously stated.
7.10 Attomeys' Fees. If either party to this Agreement is required to initiate or defend
or made a party to any action or proceeding in anyway connected with this Agreement,the prevailing
party in such action or proceeding, in addition to any other relief which may be granted,whether legal
or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's
fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other
reasonable costs for investigating such action, taking depositions and discovery and all other
necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed
to have accrued on commencement of such action and shall be enforceable whether or not such
action is prosecuted to judgment.
8.0 AGENCY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of Agency Officers andEmoloyges. No officer or employee of the
• Agency shall be personally liable to the Contractor, or any successor in,interest, in the event of any
default or breach by the Agency or for any amount which may become due to the Contractor or to its
successor, or for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest. No officer or employee of the Agency shall have any
financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate
in any decision relating to the Agreement which effects his financial interest or the financial interest of .
any corporation, partnership or association in which he is, directly or indirectly, interested,in violation
of any State statute or regulation. The Contractor warrants that it has not paid or given and will not
pay or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination. Contractor covenants that, by and for itself,
its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no
discrimination against or segregation of, any person or group of persons on account of race, color,
creed, religion, sex, marital status, national origin,or ancestry in the performance of this Agreement.
Contractor shall take affirmative action to insure that applicants are employed and that employees are
treated during employment without regard to their race, color, creed, religion, sex, marital status,
national origin, or ancestry.
9.0 MISCELLANEOUS PROVISIONS
9.1 Notice. Any notice, demand, request, document, consent, approval, or
communication either party desires or is required to give to the other party or any other person shall be
in writing and either served personally or sent by prepaid,first-class mail, in the case of the Agency,to
the Agency Executive Director and to the attention of the Contract Officer, COMMUNITY
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REDEVELOPMENT AGENCY OF PALM SPRINGS, P.O. Box 2743, Palm Springs,California 92263.
In the case of the Contractor, it should be addressed to the person at the address designated on the
execution page of this Agreement. Either party may change its address by notifying the other party of •
the change of address in writing. Notice shall be deemed communicated at the time personally
delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
9.2 Interpretation. The terms of this Agreement shall be construed in accordance
with the meaning of the language used and shall not be construed for or against either party by reason
of the authorship of this Agreement or any other rule of construction which might otherwise apply.
9.3 Integration: Amendment. It is understood that there are no oral agreements
between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any
and all previous negotiations, arrangements, agreements and understandings, if any, between the
parties,and none shall be used to interpret this Agreement. This Agreement may be amended at any
time by the mutual consent of the parties by an instrument in writing.
9.4 Severability. In the event that any one or more of the phrases, sentences,
clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or
unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or
unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or
sections of this Agreement which are hereby declared as severable and shall be interpreted to carry
out the intent of the parties hereunder unless the invalid provision is so material that its invalidity
deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
9.5 Corporate Authority. The persons executing this Agreement on behalf of the
parties hereto warrant that(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 this Agreement
does not violate any provision of any other Agreement to which said party is bound.
(Signatures on next page)
•
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03/08/2004 17:20 FAX $48 223 1180 ALESNIRE & WYNDER, LLP IA00VO02
IN WITNESS WHEREOF,the parties have executed and entered Into this Agreement as of the date
first written above.
COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS
ATTEST: a public body corporate and public
By: By:
Assistant Secretary Chairman
APPROVED AS TO FORM:
By: 2492,
Agency Counsel uly
CONTRACTOR: Check one:_Individual_Partnership_Corporatlon
Corporations require two notarized signatures:One a(gnature must be fromthe Chalmwn of Roam,PresldenQ orany Vice President The
second signature mygg be from the secretary.Assistant secretary,Treasurer,Assistant Treasurer,or Chief Financial Olncer),
DUDEK dI ASSOCIATES, INC., a California corporation
By: By:
Notarized Signature of Chairman of RO N, Notarized Signature Secretary,Asst Secretary,
President or any Vice President Treasurer,Asst Treasurer or Chief Financial Officer
Name: Name:
Title: Title:
State of - state of c
County of ass County of ae6
On before me. On before me,
perwrailyappeared pomonallyappeered
personally known to me (or proved to me on the basis of personally known to me (or proved to me on the basis of
satlehotoryevldonoo)tobo the parsons)whose name(s)Is/are satisfactoryevkfance)to be the parson(s)whose nernsiapsiore
subscribed to the within lnsbumentand acknowledgedtomethat subsodt»d to the within lnstrurnontend acknowleagedtomethat
he/she/they executed the same In hts/hsr/their authorized helsheMey executed the some In hWher/their authorized
copadty(ias), and that by hWher/Iheir slansture(s) an the apacity(les), and that by hls/hsr/Iheir slgnaturs(s) on the
instrument the pemon(a).or the entity upon behalf of which the Instrument the person(s),or the entity upon'bohalf of which the
person(s)eded,executed the Instrument. persoo(s)acted,executed the instrument.
W4TNESS my hand and of ell seal. WITNESS my hand and official seal.
Notary Signature: Notary Signature:
Notary 8081: Notary Seal:
0D000MENTS AND SETTINUTISRAELILOCAL SETTINOSITEMPORARY INTERNET FILEgtOLKMOVOEK MONITORING•$10NATURE
PAGEMOO
EXHIBIT"A"
SCOPE OF SERVICES
Under a separate Contract Service Agreement dated July 30, 2003 with the City of Palm Springs
(#3881), Contractor is responsible for a review and analysis of the Remediation Action Plan("RAP"),
also known as the Removal Action Workplan ("RAW") prepared by The Source Group (TSG) and
dated November 5, 2003, as approved on March 4, 2004 by the Department of Toxic Substances
Control("DTSC")for the development site shown in Exhibit A-1 attached hereto("Site"). The RAW
includes the removal, replacement, and re-compaction of landfill material by a remediation firm
("Remediation Firm")to be hired by Geiger, LLC("Geiger")in its capacity as Project Applicant for the
development of the Site. In addition to providing the above-described review and analysis to the
City of Palm Springs, Contractor shall, in keeping with its proposal dated March 2, 2004 attached
hereto as Exhibit A-2 and under the terms of this Contract with the City's Redevelopment Agency
("Agency"), provide remediation monitoring only on behalf of the Agency relative to the Agency-
owned portion of the Site during such time as the remediation activities conducted by the
Remediation Firm are undertaken during implementation of the DTSC-approved plan.
During the estimated three to five month remediation period, Contractor shall:
1) Obtain a copy of the final approved RAW from the Project Applicant,Agency or DTSC,
and become familiar with said document as being the official reference document for
Contractor's remediation monitoring services (a summary of the proposed RAW is
attached hereto as Exhibit A-3 for reference purposes);
2) Upon commencement of onsite remediation activities, monitor the Remediation Firm's •
clean-up activities on at least a weekly basis to physically inspect the Site. Said Site
visits are to be coordinated with the Remediation Firm to coincide to the greatestdegree
possible with remediation activities taking place on the Agency-owned portion of the Site;
3) Immediately notify Agency and consult as necessary with Geiger and/or Remediation
Firm regarding any perceived problems or changes in the approved remediation
activities or if any of the observed activities and/or conditions deviate in a significant
manner from the clean-up procedures described in the RAW;
4) Submit a brief written status report to Agency on a weekly basis;
5) Review all certificates and daily field logs described in the RAW as they relate to the
Agency-owned portion of the Site and notify Agency through its regularwritten reports as
to the Remediation Finn's compliance with the RAW in this regard; and
6) Serve in an advisory Gapacityto Agencyin any discussions with Geigerand Remediation
Firm relative to resolving any perceived discrepancies between Remediation Firm's work
and the procedures described in the RAW.
H:\USERS\CURTISW\RAMON GENE AUTRY RETAIL\CONTRACT SERVICE AGREEMENT DUDEK MONITORING.DOC
t
EXHIBIT Ar
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EXHIBIT"A-2"
CONTRACTOR'S PROPOSAL
DATED MARCH 2, 2004
•
H.\USERS\CURTISW\RAMON GENE AUTRY RETAIL\CONTRACT SERVICE AGREEMENT DUDEK MONITORING.DOC
® Engineering,Planning,
Corporate Office:
Environmental Sciences and 605 Third Street 760.942.5147
&AS50CIATES, INC.
Pro(esst,,.l n.ms for Complex Projects Management Services Encinitas,California 92024 Fax 760.632.0164
2 March 2004 404000-400
Curt Watts
Redevelopment Administrator
City of Palm Springs
Department of Planning and Zoning
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
Re: Proposal for Remediation Oversight at Landfill, City of Palm Springs
Dear Mr. Watts:
Pursuant to your request Dudek&Associates,Inc has prepared this proposal to provide
oversight services for the activities outlined in the Removal Action Work,plan(RAW)for the
landfill site located near the intersection of Gene Autry Trail and Ramon Road in the City of
Palm Springs, CA. The proposed scope of services and cost estimate is presented below.
Proposed Scope of Services and Cost Estimate
Dudek will obtain and review the RAW prepared of The Source Group,Inc. (TSG). It is our
understanding that the RAW will be approved by the California Department of Toxics
Substances Control (DTSC) and will describe the approved remediation for the site. Dudek will
monitor the remediation activities on at least a weekly basis. More frequent visits will be
coordinated with days when the contractor is working on the Redevelopment Agency's (Agency)
owned portion of the development.
Brief written status reports will be submitted to the Agency on a weekly basis. The Agency will
be immediately notified if any activities are observed that substantially deviate from those
described in the RAW. Dudek will also review all certificates and daily field logs related to the
Agency owned portion of the development. Review of the documents will be discussed in the
weekly status reports.
Dudek will also serve in an advisory capacity to the Agency in discussions with the Geiger, LLC
and the Remediation Contractor relative to resolving any perceived discrepancies between the
Remediation Contractor's work and the procedures described in the RAW.
Dudek&Associates 1
•
The estimated time and materials cost to complete the proposed scope of services is $28,870(see
attached). The estimate assumes a total of 30 field days over a period 5 months.
Dudek appreciates the opportunity to be considered for work on this project. If you have any
questions or require additional information, please contact me at 760.942.5147.
Sincerely,
Dudek& Associates
erek M. Reed, .E.
Senior Engineer
Dudek&Associates 2
Task 1. Provide Oversight Remediation Activities Palm Springs Landfill Site
LABOR (approximately 30 field days, review of the RAW and weekly reporting)) units rate cost
Principal 1 $170 $170
Engineer 10 $140 $1,400
Enviro Engineer 240 $90 $21,600
EXPENSES subtotal $23,170
vehicle ($65/day) 30 $65.00 $1,950
meals ($45/day) 30 $45.00 $1,350
hotel ($80/day) 30 $80.00 $2,400
subtotal $5,700
Total $23,870
Dudek&Associates, Inc. 1 of 1 3/2/2004
EXHIBIT"A-3"
SUMMARY OF PROPOSED REMOVAL ACTION WORKPLAN
Project Activities:
The cleanup of the former landfill site will be divided on the basis of occupied and unoccupied areas
on the site. The buildings will be occupied by workers and will lie atop native soil that is free of
contaminants that are present in the landfill material. The parking area of the site will contain the
compacted landfill material.
Following the removal of the landfill material, the footprints of the buildings will be sampled for the
presence of lead to document the removal of the landfill waste. The soil will be sampled using X-
Ray Fluorescence (XRF), with periodic confirmation by a fixed laboratory. The rationale for using
XRF is based on the fact that it is a proven technology for the levels of lead found on the Site, and
more importantly the simple economics of remediation work. At the scale of the proposed operation,
small periods of down time could cost thousands of dollars and potentially prevent the project from
being completed on budget. However, since XRF is not as accurate or precise as the fixed
laboratory, the cleanup objectives are conservatively low. The proposed cleanup objective is 230
mg/kg which is less than one-third the PRG for an industrial setting. This proposed objective also
considers that the site will be capped with pavement/buildings, and that lead is a non-volatile
constituent.
Within the central portion of the site, the landfill material will be consolidated, compacted, and
capped with clean fill soil. All debris (with the exception of drums, vessels, or containers shown to
be hazardous)will be placed within the buried cell. In summary,all landfill material will be contained
beneath a 3-foot cap of certified clean and compacted fill beneath the central parking area. The
material beneath the structures will be verified to contain <230 mg/kg lead and will consist of only
native soil. [TSG, November 2003, RAW, pp. 10-11]
Excavation
The excavation will be performed with large-scale construction equipment, including earthmovers,
scrapers, bulldozers, and loaders. Following the removal of the landfill material, clean soil will be
mined from beneath the debris in the parking lot areas. The recovered fill will be sampled and
certified as clean fill. Then, it will be used to replace the landfill material beneath the proposed
structures and will also be used as a capping material over the entire landfill mass.
The advantages of using the soil mined from the site are two-fold. First the soil is easily accessible
with the onsite construction equipment; and second, the soil is native to the site and is structurally
compatible with the un-excavated soil. [TSG, November 2003, RAW, p. 11]
Offsite Disposal of Waste
Items suspected or identified as household hazardous wastes will be immediately placed in labeled,
40 yd3, hazardous waste containers. The waste types and quantities of wastes will be inventoried
and documented in the daily field logs. Disposal of hazardous or potentially hazardous wastes will
be performed in accordance with all applicable laws and regulations. [TSG, November 2003,RAW,
p. 13] •
H:\USERS\CURTISW\RAMON GENE AUTRY RETAIL\CONTRACT SERVICE AGREEMENT DUDEK MONITORINGAOC
Recycling
• Materials with recyclable value may be stockpiled and sold to an appropriate recycling facility. It is
expected, however, that the cost to stockpile, move, and transport recyclable materials may be
greater than their actual value. Recyclable materials such as concrete and other aggregate will not
be considered for recycling. [TSG, November 2003, RAW, p. 13]
Emission Management and Dust Control
During the remediation and construction phases, air monitoring will be performed to protect the site
workers and to prevent dust and odor violations under the terms of the required air permits. These
permits include the South Coast Air Quality Management District's(SCAQMD's),Rule 1150 and the
desert cities' Fugitive Dust(PM-10)Control Plan. The PM-10,which was developed by the desert
cities in conjunction with the AQMD, adopts fugitive dust and nuisance rules from South Coast Air
Basins (Rules 403/403.1 and 402). Conditions in these permits are extremely stringent and
essentially restrict any fugitive dust emissions. In an effort to meet these requirements at the site,
around-the-clock dust monitoring will be performed in the active and inactive work areas. This
intensive dust monitoring and mitigation program will serve as the foundation for the worker
exposure monitoring.
All work will be conducted with the proper emission permitting. Engineering control measures will be
implemented to minimize nuisance and fugitive emissions from the work areas. The minimization of
the potential emissions will be conducted in accordance with the aforementioned rules and
regulations. Water trucks and onsite water supplies will be used to control dust and potential
emissions while excavating and processing soil.
• If necessary,additional measures will be employed to reduce the emissions of VOCs and/or volatile
petroleum hydrocarbons. Under the conditions of SCAQMD Rule 1150, if emissions exceed
designated thresholds, the SCAQMD will be immediately notified and mitigation of the fugitive
emissions will be performed. [TSG, November 2003, RAW, 14]
Air Monitoring
Air monitoring will be performed to protect the health of the workers and to complywith the required
permits. Dust and potential landfill gasses will be monitored throughout the remediation process.
[TSG, November 2003, RAW, p. 151
Fugitive Dust
Fugitive dust will be monitored within the work areas with real time dust monitoring devices and
along the perimeters of the Site with high flow particulate collection equipment. Currently, TSG is
working with the SCAQMD and equipment vendors to refine the equipment alternative. The
screening process also requires the determination of whether the chosen equipment is capable of
monitoring sufficiently low particulate concentrations. These detection levels must meet the data
requirements in an effort to calculate potential exposure risks to workers and the local public. [TSG,
November 2003, RAW, p. 151
Landfill Gasses
The field personnel will use a flame ionization detector(FID)or photo-ionization detector(PID)which
• can be calibrated to respond to nearly all organic compounds. The FID will be calibrated to a pre-
H:\USERS\CURTISW\RAMON GENE AUTRY RETAIL\CONTRACT SERVICE AGREEMENT DUDEK MONITORING.DOC
, d
determined mixture of methane and air at the factory. Each day the FIDs will be recalibrated for the
target VOCs using manufacturer's specifications and procedures. [TSG,November2003, RAW, p.
15] •
Landfill Capping
Following compaction of the landfill debris/soil matrix, a 3-foot soil cap will be placed above the
landfill mass.The cap will be placed across the parking areas (where landfill debris is located)and
will provide the necessary engineering safeguards forgeotechnical stabilization. In addition,the cap
will serve as environmental insurance to protect the landfill from surface water infiltration and
provide a buffer zone during utility installations. [TSG, November 2003, RAW, p. 15]
Drainage Controls
Surface and subsurface drainage controls will be constructed across the proposed development.
The surface controls will include standard storm water contouring with flow directed toward a
subsurface retention basin. The retention basin will be lined and located outside the footprint of the
landfill material. The proposed development,will also include planters located above the landfill
material. These planters will be lined with impermeable polyvinyl chloride(PVC)liners and plumbed
to the retention basin. This type of drainage control system is currently in use in California and will
prevent rain and irrigation water from entering the landfill. [TSG, November 2003, RAW, p. 15]
Landfill Gas Control
Following placement and compaction of the landfill debris,a subsurface network of vapor recovery
piping (well screen)will be installed within the base material beneath the concrete foundations of the
proposed buildings and the onsite structures. The vapor collection piping will be placed •
approximately 1 ft to 3 ft below grade, with each section manifolded to dedicate monitoring points
throughout the proposed development. The monitoring points will be contained in sealed vaults
located directly adjacent to the buildings.
Forthe vapor collection piping beneath the buildings,the screened segments will be constructed on
50-foot centers. In the parking area,above the landfill material,the screened segments of piping will
be spaced on 200-foot centers. All collection piping will have a minimum diameter of 4 inches. The
piping material will consist of Schedule 40 PVC and the screen will be machine-slotted for uniform
consistency.
Immediately following the construction of the development, a monitoring program will be
implemented to determine if methane or other gases are accumulating in the recovery network. This
monitoring should be performed,initially,on a monthly basis for the first year and quarterly thereafter
or until:
a) it can be documented that gas buildup is not an issue, or
b) concentration trends are established.
In the event that gas concentrations approach explosive or toxic levels or exceed odor thresholds,a
simple low flow vacuum pump will be connected to the piping network to purge the gases from
beneath the structure(s). These types of pumps can be solar,wind,or electrically powered to simply
induce a low pressure pathway through which the gases discharge. At such a time when system
upgrading is warranted, the piping network will be retrofitted with risers that attach to the outside
walls of the buildings. The vent risers will then be manifolded to the lowflow pumps to remove the
accumulated gasses.
H:\USERS\CURTISNARAMON GENE AUTRY RETAIL\CONTRACT SERVICE AGREEMENT DUDEK MONITORING.DOC
If the potential discharged gasses are regulated under the SCAQMD, permits and control equipment
• will be procured for long term operation. [TSG, November 2003, RAW, p. 20]
Agencies Having Jurisdiction Over the Project/Types of Permit Required:
All work performed during the remediation and redevelopment of the propertywill complywith City,
State, and Federal regulations. Project specific information and the related agencies are presented
in the following sections. [TSG, November 2003, RAW, p. 20]
Excavation
An excavation permit will be required for the earthwork. The permit will be obtained from the City of
Palm Springs'Department of Building and Safety. During the remediation phase of the project,soil
management and ultimate compaction will be a critical component of the approved development
and,therefore,these activities will involve the City s inspection team. [TSG, November 2003,RAW,
p. 20]
Water
The Desert Water Agency(DWA)is the water supply agency for the subject area. A permit for water
usage and a temporary water meter will be required for the on site water supply. The selected
contractor (earthwork)will be responsible for procurement of the water permit. [TSG, November
2003, RAW, p. 20]
Electrical
• A temporary power pole will be required for electrical service. Electrical power will be used to
energize the temporary on-site office/trailer, for running and charging equipment, and for night
lighting, if necessary. The electrical permit will be obtained through the City of Palm Springs. The
selected contractor(earthwork)will be responsible for procurement of the electrical permit. (TSG,
November 2003, RAW, p. 201
Air
The SCAQMD is responsible for the air quality related issues during the removal and recompaction
of the landfill material. The SCAQMD rules that apply to the proposed work include Rule 402, Rule
403, and Rule 1150 for nuisance, fugitive dust, and landfill excavation monitoring. The VOC
emission monitoring for decontamination of soil (Rule 1166) is covered in the Rule 1150 permit.
Under Rule 1150, the AQMD issues site specific permits which require the holders to monitor the
perimeter and excavation face for landfill gasses such as methane, sulfur compounds, and any
speciated non-methane hydrocarbons such as benzene and vinyl chloride. The permit also limits
the amount of work face that can be excavated at any given time. [TSG, November 2003, RAW, p.
20]
Building
The City will not likely play a significant role in the remediation phase of the project; however, the
Agency will be intimately involved in the redevelopment. There will be numerous permits required,
including electrical, mechanical, structural, plumbing,and others. Priorto approval of the proposed
development plan, the City's planning department will review, modify, and approve the proposed
development. Construction permits will be the responsibility of the Project Applicant. [TSG,
HAUSERS\CURTISVARAMON GENE AUTRY RETAIL\CONTRACT SERVICE AGREEMENT DUDEK MONITORING.DOC
November2003, RAW, p. 21]
Health and Safety Plan (HASP) •
A site-specific HASP has been prepared byTSG to minimize potential health hazards to the workers
onsite. Access to the excavation and work areas with exposed contaminated soils shall be
restricted in accordance with the HASP. All field personnel involved with the excavation and
removal activities shall have the requisite training and Site orientation specified. [fSG, November
2003, RAW, p. 22]
HAUSERS\CURTISIMRAMON GENE AUTRY RETAILICONTRACT SERVICE AGREEMENT DUDEK MONITORING.DOC
EXHIBIT`B"
SPECIAL REQUIREMENTS
• Section 5.1(d) The Contractor shall procure and maintain professional liability insurance in a
minimum amount of $1,000,000 conforming to the policy requirements of
Section 5.0 of this Agreement.
Section 5.3 The requirements of Section 5.3 for a Performance Bond are hereby waived.
•
H:IUSERSICURTISWIRAMON GENE AUTRY RETAIL=NTRACT SERVICE AGREEMENT DUDEK MONITORING.DOC
EXHIBIT"C"
SCHEDULE OF COMPENSATION
Total compensation for the work to performed shall not exceed $28,870.
Payment:
Payment shall be made on a time and materials basis as itemized on monthly invoices in accordance
with the following schedule:
LABOR(approximately 30 field days, review of the RAW and weekly reporting):
Hours Rate Cost
Principal 1 $170 $ 170
Engineer 10 $140 1,400
Enviro Engineer 240 $ 90 21,600
Sub-Total $23,170
EXPENSES:
Days Rate Cost
Vehicle ($65/day) 30 $65 $ 1,950
Per Diem—Meals ($45/day) 30 $45 1,350
Per Diem—Hotel ($80/night) 30 $80 2,400
Sub-Total $ 5,700
NOT TO EXCEED TOTAL $28,870 •
Compensation for the above sums shall be billed to the Agency on a monthly basis, based on the
tasks completed as outlined above.
RkUSEWCURTISWIRAMON GENE AUTRY RETAIUCONTRACT SERVICE AGREEMENT DUDEK MONITORING.DOC
EXHIBIT"D"
SCHEDULE OF PERFORMANCE
The work will be performed following Agency's notice to proceed over an expected three to five
month period during field activities as outlined in the RAW. Contractor shall provide a weekly
status report of its site visits and field activities as described in the Scope of Service.
H:\USERS\CURTISW\RAMON GENE AUTRY RETAIL\CONTRACT SERVICE AGREEMENT DUDEK MONITORING.DOC
LICENSE BETWEEN
THE COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
AND GEIGER, LLC
FOR PERFORMANCE OF REMEDIATION WORK
THIS LICENSE BETWEEN THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS AND GEIGER, LLC FOR
PERFORMANCE OF REMEDIATION WORK ("Agreement") is made and entered into,
to be effective the_day of 2004 ("Effective Date"), by and between the
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS,
CALIFORNIA a public body corporate and politic ("Agency"), and Geiger, LLC
("Licensee"). Agency and Licensee may hereinafter be referred to individually as a
"Party" and collectively as "Parties."
RECITALS
WHEREAS, the Agency is a public body, corporate and politic, exercising
governmental functions and powers and organized and existing under the Community
Redevelopment Law of the State of California (Health and Safety Code §§ 33000, et
seq.); and
WHEREAS, the Agency desires to effectuate the Redevelopment Plan for
Redevelopment Project Area No. 4, now a part of Merged Project Area#1, by providing
for the development of a regional retail shopping center within a portion of the
approximately 36-acre vacant property at the northeast corner of Gene Autry Trail and
Ramon Road ("Shopping Center" and "Shopping Center Site") in the City of Palm
Springs, California("City"); and
WHEREAS, Agency is the fee owner of certain real property, totaling
approximately 14.95 acres, located at the northeast corner of Gene Autry Trail and
Ramon Road, Palm Springs, California ("Property") which is a portion of the Shopping
Center Site; and
WHEREAS, Licensee has arranged to have access to that portion of the Shopping
Center Site which is not owned by Agency for the purpose of remediating the Shopping
Center Site, as more particularly described below; and
WHEREAS, a true and correct map of the Shopping Center Site, including the
Property, is attached hereto and incorporated herein as Exhibit"A"; and
WHEREAS, the Shopping Center Site was previously used as a dump site and
requires extensive remediation before construction of the Shopping Center can
commence; and
WHEREAS, on April 4, 2002, Licensee entered into an Exclusive Agreement to
Negotiate with the Agency relating to the remediation and development of the Shopping
Center, which agreement has been extended to April 15, 2004; and
1 _
1003.035/28892v2 /F
WHEREAS, Licensee is experienced in shopping center development and
remediating sites subject to environmental contamination and has dealt with the major
tenants who might occupy the Shopping Center; and
WHEREAS, Licensee has prepared a remediation action workplan ("RAW")
detailing Licensee's plan to clean up the Shopping Center Site (a true and correct copy of
the RAW is attached hereto and incorporated herein as Exhibit `B"); and
WHEREAS, the RAW has been submitted to the California Department of Toxic
Substances Control ("DTSC") as the lead agency for the Shopping Center Site's
remediation; and
WHEREAS, the RAW was approved by DTSC on March 4, 2004 (a true and
correct copy of the DTSC letter approving the RAW is attached hereto and incorporated
herein as Exhibit"C"); and
WHEREAS, the RAW permits Licensee to remediate the soil conditions on the
entire Shopping Center Site, including the Property; and
WHEREAS, the Agency and Licensee are processing a disposition and
development agreement ("DDA") relative to the remediation of the Shopping Center Site
and the construction of the Shopping Center; and
WHEREAS, although Agency has no obligation to enter into the DDA, if Agency
approves the DDA, Agency agrees that the value of Licensee's costs incurred in
connection with the remediation of the Shopping Center Site will be credited against the
purchase price paid by Licensee to acquire the Property pursuant to the terms of the
DDA; and
WHEREAS, Licensee now desires to commence the remediation of the Shopping
Center Site and is prepared to commence the remediation process, pursuant to the RAW;
and
WHEREAS, Agency would like Licensee to commence remediation of the
Property concurrent with the remainder of the Shopping Center Site.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
conditions set forth herein, the Parties hereto and each of them does agree as follows:
1. Investigation and Condition of the Property. Licensee has had full access
to the Agency's files concerning the Property, as well as the Property, and has undertaken
its own investigation of the Property in connection with preparing and submitting the
RAW for DTSC's approval, and is taking sole responsibility for implementing the
approved RAW. Agency agrees to cooperate diligently and in good faith in providing
Licensee with any requested records concerning the condition of the Property and access
to the Property pursuant to the terms of this Agreement.
1003.035128892v2 2
The surface of the Shopping Center Site is strewn with jagged construction debris,
broken glass and various types of corroded metal. The surface soil may also contain
elevated levels of lead and PCDDs. The Shopping Center Site also contains construction
debris (rocks, concrete, asphalt, scrap metal and wood) and household waste.
Licensee acknowledges that it has access to the Property in an "as is" condition
under this Agreement, and that Agency makes no representation or warranty concerning
the physical, environmental, geotechnical or other condition of the Properly, the
suitability of the Property for the Shopping Center, and specifically disclaims all
representations or warranties of any nature concerning the Property made by it, the City
and their employees, agents and representatives. The foregoing disclaimer includes,
without limitation, topography, climate, air, water rights, utilities, present and future
zoning, soil, subsoil, existence of Hazardous Materials or similar substances, the purpose
for which the Site is suited, or drainage. Licensee further agrees that it shall be
responsible for the condition of the Property while Licensee is remediating the Property.
2. Permits. The RAW has been approved by DTSC. Licensee will obtain all
necessary permits for the remediation of the Shopping Center Site, including the
Property. The remediation shall be planned to take advantage of the immunity provisions
of the Polanco Redevelopment Act, Health& Safety Code §§ 33459.01, et seq.
3. Remediation Pursuant to the RAW. Licensee shall undertake the
remediation work pursuant to the DTSC-approved RAW and the schedule attached hereto
as Exhibit "D;" provided, however, that to the extent any inconsistency occurs between
undertaking the remedial work pursuant to the RAW and the directives of DTSC on the
one hand and undertaking that work in accordance with the attached schedule on the
other, the requirements of the RAW and DTSC shall prevail over those of the schedule.
Moreover, Licensee agrees that, with the exception of potentially or actual Hazardous
Materials (as defined below), Licensee shall ensure that the volumes of existing landfill
material, with respect to the Property versus the remainder of the Shopping Center Site,
which is re-deposited within the footprint of the existing landfill, shall be re-deposited in
proportion to the volumes removed from the Property versus the remainder of the
Shopping Center Site.
4. Cost of Remediation. Licensee shall be solely responsible for the costs
incurred in remediating the Shopping Center Site pursuant to the RAW, and for the
construction of any improvements related thereto. As set forth in the recital above, the
value of Licensee's costs incurred and risks associated with this remediation will be
credited against the purchase price Licensee will pay in acquiring the Property if the
parties successfully negotiate and approve the DDA. If the parties, however, do not
approve and consummate the DDA, Agency shall bear no liability for any such costs
incurred.
5. Assumption of All Risks and Liabilities.
A. Licensee, as a material part of the consideration to Agency, hereby
assumes all risks and liabilities arising out of or relating to the remediation and/or use of
1003.035/28892v2 3
the Property including, without limitation, injury to persons in, upon or about the
Property during Licensee's use of the Property, arising from any use of or work
undertaken upon the Property or other activities of Licensee or Licensee's employees,
contractors, agents, representatives, guests or invitees ("Licensee's Parties") on the
Property. Licensee hereby waives all claims with respect thereof against Agency.
B. Agency shall not be liable for any injury to the Property or Shopping
Center Site, or injury to or death of any of Licensee's Parties, or injury or death to any
trespasser, or injury to or death of any other person in or about the Property from any
cause except to the extent caused by the negligence or willful misconduct of the Agency,
the City or the City or Agency's Licensee's employees, contractors, agents,
representatives, guests or invitees.
C. Licensee's assumption of liability shall continue until completion of the
work under the RAW as provided in Section _ Upon issuance of a notice of
completion, Licensee's liability shall be limited to its obligation to extend reasonable care
in the performance of the work under the RAW.
6. Hazardous Materials. Licensee understands and agrees that in the event
Licensee incurs any loss or liability concerning Hazardous Materials (as hereinafter
defined) and/or underground storage tanks, under no circumstances shall Licensee look to
Agency or City for any liability or indemnification regarding Hazardous Materials and/or
underground storage tanks. Licensee, and each of the entities constituting Licensee, if
any, from and after the execution of this Agreement, hereby waives, releases, remises,
acquits and forever discharges Agency, City, their directors, officers, share-holders,
employees, and agents, and their respective heirs, successors, personal representatives
and assigns, of and from any and all Environmental Claims, Environmental Cleanup
Liability and Environmental Compliance Costs, as those terms are defined below, and
from any and all actions, suits, legal or administrative orders or proceedings, demands,
actual damages, punitive damages, loss, costs, liabilities and expenses, which concern or
in any way relate to the physical or environmental conditions of the Property, the
existence of any Hazardous Material thereon, or the release or threatened release of
Hazardous Materials therefrom, whether existing prior to, at or after the execution of this
Agreement. It is the intention of the parties pursuant to this release that any and all
responsibilities and obligations of Agency and City, and any and all rights, claims, rights
of action, causes of action, demands or legal rights of any kind of Licensee, its
successors, assigns or any affiliated entity of Licensee, arising by virtue of the
remediation of the Property, the existence of any Hazardous Materials thereon, or any
release or threatened release of Hazardous Material therefrom during the remediation, are
by this Release provision declared null and void and of no present or future force and
effect as to the parties.
In connection therewith, Licensee and each of the entities constituting Licensee,
expressly agree to waive any and all rights which said party may have under Section
1542 of the California Civil Code which provides as follows:
1003.035/28892v2 4
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor."
LICENSEE'S INITIALS: AGENCY'S INITIALS:
Licensee and each of the entities constituting Licensee, shall, from and after the
execution of this Agreement, defend, indemnify and hold harmless Agency, City and
their officers, directors, employees, agents and representatives (collectively, the
"Indemnified Parties") from and against any and all Environmental Claims,
Environmental Cleanup Liability, Environmental Compliance Costs, and any other
claims, actions, suits, legal or administrative orders or proceedings, demands or other
liabilities resulting at any time from the physical and/or environmental conditions of the
Property whether before or after the execution of this Agreement or from the existence of
any Hazardous Materials or the release or threatened release of any Hazardous Materials
of any kind whatsoever, in, on or under the Property occurring at any time whether before
or after the execution of this Agreement, including, but not limited to, all foreseeable and
unforeseeable damages, fees, costs, losses and expenses, including any and all attorneys'
fees and environmental consultant fees and investigation costs and expenses, directly or
indirectly arising therefrom, and including fines and penalties of any nature whatsoever,
assessed, levied or asserted against any Indemnified Parties to the extent that the fines
and/or penalties are the result of a violation or an alleged violation of any Environmental
Law. Licensee further agrees that in the event Licensee obtains, from former or present
owners of the Property or any other persons or entities, releases from liability,
indemnities, or other forms of hold harmless relating to the subject matter of this section,
Licensee shall use its diligent efforts to obtain for Agency and City the same releases,
indemnities and other comparable provisions.
For purposes of this Section, the following terms shall have the following
meanings:
"Environmental Claim" means any claim for personal injury, death and/or
property damage made, asserted or prosecuted by or on behalf of any third party,
including, without limitation, any governmental entity, relating to the Property or its
operations and arising or alleged to arise under any Environmental Law.
"Environmental Cleanup Liability" means any cost or expense of any nature
whatsoever incurred to contain, remove, remedy, clean up, or abate any contamination or
any Hazardous Materials on or under all or any part of the Property, including the ground
water there under, including, without limitation, (A) any direct costs or expenses for
investigation, study, assessment, legal representation, cost recovery by governmental
agencies, or ongoing monitoring in connection therewith and (B) any cost, expense, loss
or damage incurred with respect to the Property or its operation as a result of actions or
measures necessary to implement or effectuate any such containment, removal,
remediation, treatment, cleanup or abatement.
1003.035/28892v2 5
"Environmental Compliance Cost" means any cost or expense of any nature
whatsoever necessary to enable the Property to comply with all applicable Environmental
Laws in effect. "Environmental Compliance Cost" shall include all costs necessary to
demonstrate that the Property is capable of such compliance.
"Environmental Law" means any federal, state or local statute, ordinance, rule,
regulation, order, consent decree,judgment or common-law doctrine, and provisions and
conditions of permits, licenses and other operating authorizations relating to (A)pollution
or protection of the environment, including natural resources, (B) exposure of persons,
including employees, to Hazardous Materials or other pro-ducts, raw materials, chemicals
or other substances, (C) protection of the public health or welfare from the effects of by-
products, wastes, emissions, discharges or releases of chemical sub-stances from
industrial or commercial activities, or (D) regulation of the manufacture, use or
introduction into commerce of chemical substances, including, without limitation, their
manufacture, formulation, labeling, distribution, transportation, handling, storage and
disposal.
"Hazardous Material" is defined to include any hazardous or toxic substance,
material or waste which is or becomes regulated by any local governmental authority, the
State of California, or the United States Government. The term "Hazardous Material'
includes, without limitation, any material or substance which is: (A) petroleum or oil or
gas or any direct or derivate product or byproduct thereof; (B) defined as a "hazardous
waste," "extremely hazardous waste" or "restricted hazardous waste" under Sections
25115, 25117 or 25122.7, or listed pursuant to Section 25140, of the California Health
and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (C) defined
as a "hazardous substance" under Section 25316 of the California Health and Safety
Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account
Act); (D) defined as a "hazardous material," "hazardous substance," or "hazardous
waste" under Sections 255010) and (k) and 25501.1 of the California Health and Safety
Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and
Inventory); (E) defined as a"hazardous substance"under Section 25281 of the California
Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous
Substances); (F) "used oil' as defined under Section 25250.1 of the California Health and
Safety Code; (G) asbestos; (H) listed under Chapter 11 of Division 4.5 of Title 22 of the
California Code of Regulations, or defined as hazardous or extremely hazardous pursuant
to Chapter 10 of Division 4.5 of Title 22 of the California Code of Regulations; (1)
defined as waste or a hazardous substance pursuant to the Porter-Cologne Act, Section
13050 of the California Water Code; (J) designated as a "toxic pollutant' pursuant to the
Federal Water Pollution Control Act, 33 U.S.C. § 1317; (K) defined as a "hazardous
waste" pursuant to the Federal Resource Conservation and Recovery Act, 42 U.S.C. §
6901 et seq. (42 U.S.C. § 6903); (L) defined as a "hazardous substance" pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §
9601 et seq. (42 U.S.C. § 9601); (M) defined as "Hazardous Material' pursuant to the
Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et seq.; or(N) defined as such
or regulated by any "Superfund" or "Superlien" law, or any other federal, state or local
law, statute, ordinance, code, rule, regulation, order or decree regulating, relating to, or
1003.035/28892v2 6
imposing liability or standards of conduct concerning Hazardous Materials and/or
underground storage tanks, as now, or at any time here-after, in effect.
Notwithstanding any other provision of this Agreement, Licensee's release and
indemnification as set forth in the provisions of this Section, as well as all provisions of
this Section shall survive the termination of this Agreement and shall continue in
perpetuity.
7. Security. The parties acknowledge that the security of the public and the
Shopping Center Site is a priority. For this reason, Licensee shall implement safeguards
to minimize security breaches and to prevent the public from accessing the Shopping
Center Site. Prior to commencement of remediation activities, Licensee shall install a
chain link fence around the perimeter of the Shopping Center Site to prevent the public
from accessing the Shopping Center Site. Licensee shall be solely responsible for the
cost of any security necessary in connection with this Agreement.
7. Grant of Access. Agency hereby grants to Licensee a license and
permission to enter upon and use the Property for the limited purposes of undertaking the
remediation of the Property, pursuant to the RAW and the schedule attached hereto as
Exhibit _ as set forth in Section 3 hereof. The License granted herein shall commence
as of the Effective Date and shall terminate one (1) year from the Effective Date, unless
otherwise agreed to by the Parties and memorialized in writing.
8. Insurance. Prior to the commencement of the remediation of the Property,
Licensee will provide Agency with proof of insurance, at Licensee's sole cost and
expense, to remain in full force and effect during the entire term of this Agreement. The
following policies of insurance shall be maintained:
a. Workers' Compensation Insurance. Workers' Compensation
Insurance in an amount required by the laws of California and Employer's
Liability Insurance in an amount not less that ONE MILLION DOLLARS
($1,000,000) combined single limit for all damages arising from each accident or
occupational disease.
b. Commercial General Liabilitv. Commercial General Liability
Insurance written on a per-occurrence and not a claims-made basis in an amount
not less that ONE MILLION DOLLARS ($1,000,000) combined single limit.
C. Automobile Liability Insurance. A policy of comprehensive
automobile liability insurance written on a per-occurrence basis in an amount not
less than TWO MILLION DOLLARS ($2,000,000) combined single limit
covering all owned, non-owned, leased, and hired vehicles used in connection
with operations occurring on the Property.
d. Other Insurance. Such other policies of insurance including, but
not limited to, casualty insurance, business interruption insurance and fidelity
insurance, as may be required by the nature of operations.
1003.035/28892v2 7
e. General Provisions. All of the foregoing policies of insurance
shall name the Agency as an additional insured and shall be primary insurance
and any insurance maintained by Agency shall be excess and non-contributing.
Each insurer of Licensee shall waive all rights of contribution and subrogation
against Agency and its respective insurers. Each of such policies of insurance
shall name Agency and its affiliated entities, and their respective officers,
directors, agents, and employees (collectively, "Agency's Parties.") All policies
of insurance required to be obtained by Licensee hereunder shall be issued by
insurance companies authorized to do business in California and must be rated no
less than B+:VII or better in Best's Insurance Guide. Prior to engaging in any
operations hereunder, Licensee shall deliver to Agency certificate(s) of insurance
evidencing the coverages specified above. Such policies shall not be cancelled or
materially altered to the detriment of Agency or Licensee without the insurer
providing Agency with 30 days' written notice.
9. Condition Upon Completion. Licensee has the obligation to perform all
work as set forth in the RAW. Upon completion of the work, Agency's consultant,
Licensee and DTSC shall certify each that the work has been done pursuant to the RAW
and Agency will issue a"Notice of Completion."
10. Agency's Remediation Consultant. Agency may retain a remediation
consultant ("Consultant") to oversee and advise the Agency on the status of the
remediation work and to make field decisions on behalf of the Agency. Should Agency
elect to retain a Consultant, Licensee shall provide the Consultant copies of all revised
remediation plans and include the Consultant in all remediation-related meetings relating
to any portion of the Shopping Center Site. The Consultant shall have full and complete
access to the Shopping Center Site at all times. Neither the Agency nor its Consultant
shall in any manner render impossible Licensee's remedial work pursuant to the RAW.
Such work will be Licensee's sole responsibility, and the Agency and its Consultant shall
have no right to direct, supervise or materially affect such work. Neither the Agency, nor
its Consultant, nor anyone acting on behalf of either such party shall contact DTSC or
any other governmental entity other than the City concerning such work without first
obtaining Licensee's consent. Upon Licensee's completion of the work, if the Consultant
fmds that the work has been performed in compliance with the RAW, Consultant shall
issue the Notice of Completion.
11. Performance Bond/Letter of Credit. Concurrent with the commencement
of the remedial work on the Property, Licensee shall deliver to Agency a performance
bond or letter of credit in the sum of the agreed-upon amount for the remediation work on
the Property, which amount shall be reduced periodically to correspond to the amount of
the work remaining to be performed as the work progresses. The bond or letter of credit
shall secure the faithful performance of the remediation. If a bond is used, the bond shall
contain the original, notarized signature of an authorized officer of the surety and affixed
thereto shall be a certified and current copy of his power of attorney. The bond or letter
of credit shall be unconditional and remain in force until DTSC issues a no further action
letter or similar document confirming the completion of the remedial work tinder the
RAW, at which point the bond or letter of credit shall be null and void. Should Licensee
1003.035/28892v2 8
fail to complete the remediation work on the Property pursuant to the RAW, Agency may
proceed on the performance bond requiring the surety to complete the work.
12. Notice of Commencement of Work Reports. The Licensee shall give the
Agency twenty-four hours prior written notice of Licensee's commencement of work on
the Property. Licensee shall issue periodic written reports to Agency to keep Agency
informed on the progress of the work.
103. Schedule. The remediation work shall be undertaken pursuant to the
approved RAW and the schedule attached as Exhibit"D."
114. No Agency Financial Assistance. None of the terns in this Agreement
shall be construed as providing financial assistance contrary to the provisions of Health &
Safety Code Sections 33426.5 and 33426.7. However, the contaminated condition of the
Property can be taken into account to determine the actual fair market value of the
Property. Therefore, should Licensee complete the remediation of the Shopping Center
Site, the parties successfully negotiate and execute the DDA and the Agency gives
Licensee a credit against the purchase price for the value of Licensee's costs incurred and
risks associated with the remedial work pursuant to the RAW, such credit shall not be
considered to be financial assistance
15. License Not Assignable. This Agreement shall become effective
immediately and is personal to the Licensee and is not assignable. Any attempt by
Licensee to assign this Agreement shall be void and shall cause the immediate
termination of this Agreement.
126. Indemnification by Licensee. Licensee shall indemnify, defend (with
counsel designated by Agency), protect and hold harmless Agency and Agency's Parties
from and against any and all claims, demands, judgments, actions, damages, losses,
penalties, liabilities, costs and expenses (including, without limitation, attorney's fees and
court costs) arising at any time directly or indirectly from or in connection with (i) the
performance of any obligation by Licensee under the terms of this Agreement, (ii)
Licensee's use of the Property, or (iii) the conduct of Licensee's business or any activity,
work or things done, permitted or suffered by Licensee in or about the Property, except to
the extent caused by Agency's negligence or willful misconduct. The obligations of
Licensee under this Section 7(a) shall survive the expiration or earlier termination of this
Agreement.
Licensee, as a material part of the consideration to Agency, hereby assumes all
risk of damage to the Property, including, without limitation, injury to persons in, upon or
about the Property during Licensee's use of the Property, arising from any activity of
Licensee relative to work or activities of Licensee on the Property and/or arising from the
existence of contaminated soil on the Property. Licensee hereby waives all claims with
respect thereof against Agency, except to the extent caused by Agency's negligence or
willful misconduct. Agency shall not be liable for any injury to the Property or
contaminated soil or similar materials, or injury to or death of any of Licensee's Parties
1003.035/28892v2 9
or any other person in or about the Property from any cause except to the extent caused
by the Agency's negligence or willful misconduct.
137. Waste, Damage, or Destruction; Surrender of Property. The Licensee
shall not allow any waste, damage or destruction to occur on the Property. If this
Agreement terminates, upon such termination, Licensee, as its sole expense, shall repair
any waste, damage or destruction and, except for any contaminated soil which has been
removed, shall restore the Property to that condition existing prior to Licensee's use of
the Property,waste, damage or destruction.
18. Government Approvals; Compliance with Laws. Licensee, at its sole cost
and expense, shall obtain all permits and approvals required from any governmental or
quasi-governmental agency having jurisdiction with respect to the remediation and
related activities as set forth in the RAW.
149. Termination Prior to Expiration of Term. Agency may terminate this
Agreement only upon providing Licensee thirty (30) days' written notice of termination
and each of the reasons therefore, and only if Licensee: (i) fails to undertake the remedial
work in substantial compliance with the DTSC-approved RAW, (ii) materially breaches
this Agreement, (iii) files a petition in bankruptcy, (iv) is adjudicated bankrupt, (v) if a
petition in bankruptcy is filed against Licensee and not discharged within thirty(30) days,
(vi) if Licensee becomes insolvent or makes an assignment for the benefit of its creditors
or an arrangement pursuant to any bankruptcy law, or (vii) if a receiver is approached for
Licensee or its business during the Term of this Agreement. Should items (iii) through
(vii) occur, Agency may terminate this Agreement upon twenty-four (24) hours' written
notice to Licensee.
20. Governing Law. This Agreement shall be governed by, interpreted under,
and construed and enforced in accordance with the laws of the State of California.
21. Attorney's Fees. If either party to this Agreement is required to initiate or
defend or made a party to any action or proceeding in any way connected with this
Agreement, the prevailing party in such action or proceeding, in addition to any other
relief which may be granted, whether legal or equitable, shall be entitled to reasonable
attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in
addition a party entitled to attorney's fees shall be entitled to all other reasonable costs
for investigating such action, taking depositions and discovery and all other necessary
costs the court allows which are incurred in such litigation. All such fees shall be
deemed to have accrued on commencement of such action and shall be enforceable
whether or not such action is prosecuted to judgment.
152. Severability. If any paragraph, section, sentence, clause of phrase
contained in this Agreement shall become illegal, null or void, against public policy, or
otherwise unenforceable, for any reason, or held by any court of competent jurisdiction to
be illegal, null or void, against public policy, or otherwise unenforceable, the remaining
paragraphs, sections, sentences, clauses or phrases contained in the Agreement shall not
be affected thereby.
1003.035/28892v2 10
23. Waiver. The waiver of any breach of any provision hereunder by Agency
or Licensee shall not be deemed to be a waiver of any preceding or subsequent breach
hereunder. No failure or delay of any Party in the exercise of any right given hereunder
shall constitute a waiver thereof nor shall any partial exercise of any right preclude
further exercise thereof.
24. Counterparts. This Agreement may be signed in any number of
counterparts, each of which will be deemed to be an original, but all of which together
will constitute one instrument.
165. Notice. Any notice required or permitted to be given hereunder shall be in
writing and signed by the Party, officer or agent of the Party to whom it is to be sent, and
shall be either: (1) personally delivered to the Party to whom it is to be sent, or (2) sent
via overnight courier services, or (3) sent via certified or registered mail, return receipt
requested, postage prepaid to the respective addresses, or such other addresses as the
Parties may specify in writing:
To Agency: Community Redevelopment Agency
of the City of Palm Springs
3200 East Tahquitz Canyon Way
Pahn Springs, California 92262
Attn: Redevelopment Administrator
To Licensee: Geiger, LLC
9171 Wilshire Boulevard
Beverly Hills, California 92210
Attn: Mr. Mark Gabay
With a copy to:
Greenberg Traurig, LLP
2450 Colorado Avenue, Suite 400 E
Santa Monica, CA 90404
Attn: Fernando Villa, Esq.
[SIGNATURE PAGE FOLLOWS]
1003.035128892v2 1 1
IN WITNESS WHEREOF, Agency and Licensee have executed this Agreement
as of the Effective Date as indicated by the signatures below.
LICENSEE:
By: GEIGER,LLC
Date: 2004 By:
Print Name:
Title:
Date: 12004 By:
Print Name:
Title:
(All signatures must be notarized.)
APPROVED AS TO FORM:
By:
Counsel for Licensee
AGENCY:
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM
SPRINGS, CALIFORNIA
Date: 2004 By:
Chainnan
ATTEST:
By:
Agency Secretary
APPROVED AS TO FORM BY:
Aleshire &Wynder
By:
David J. Aleshire, Agency Attorney
1003.035/28892v2 12
RESOLUTION NO.
OF THE COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING
A SECOND AMENDED AND RESTATED EXCLUSIVE
AGREEMENT TO NEGOTIATE WITH GEIGER, LLC OF
BEVERLY HILLS, CALIFORNIA FOR THE PURCHASE AND
DEVELOPMENT OF A REDEVELOPMENT- AGENCY-
OWNED PARCEL AND A PRIVATELY OWNED PARCEL IN
MERGED PROJECT AREA #1 (FORMERLY THE RAMON-
BOGIE REDEVELOPMENT PROJECT AREA)
WHEREAS the Community Redevelopment Agency does own a parcel of land of
approximately 14 acres in Merged Project Area #1, formerly known as the Ramon-Bogie
Project Area; and
WHEREAS the Agency desires to sell the parcel to a developer that can return the land
to productive use and facilitate additional development in the area around the site,
including the generation of sales tax for the City of Palm Springs, and
WHEREAS Geiger, LLC of Beverly Hills ("Geiger"), has determined that the
development of the site may be practical for a Shopping Center development; and
WHEREAS Geiger has performed under the terms of the Original Agreement, and has
asked for additional time to complete the remediation process and the land use
entitlement process for a period of three years on the parcel while they conclude the
Shopping Center entitlement and development process and while the remediation work
is done; and
WHEREAS, the additional term of the negotiating agreement beyond the entitlement
phase ensures investors and lenders that, but for the provisions of Redevelopment Law
that do not allow the Agency to dispose of property prior to a CEQA action, Geiger could
gain fee title to the parcel prior to commencing remediation.
NOW THEREFORE BE IT RESOLVED by the Community Redevelopment Agency of
the City of Palm Springs, that the Second Amended and Restated Exclusive Agreement
to Negotiate between the Agency and Geiger, LLC, in a form acceptable to Agency
Counsel, is hereby approved.
ADOPTED this day of 2004.
AYES:
NOES:
ABSENT:
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, CALIFORNIA
By
Assistant Secretary Chairman
REVIEWED &APPROVED AS TO FORM
RESOLUTION NO.
OF THE COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING
A LICENSE BETWEEN THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF PALM
SPRINGS AND GEIGER, LLC FOR PERFORMANCE OF
REMEDIATION WORK OF AN AGENCY-OWNED PARCEL
IN MERGED PROJECT AREA #1 (FORMERLY THE
RAMON-BOGIE REDEVELOPMENT PROJECT AREA)
WHEREAS, the Agency is a public body, corporate and politic, exercising governmental
functions and powers and organized and existing under the Community Redevelopment
Law of the State of California (Health and Safety Code §§ 33000, et seq.); and
WHEREAS, the Agency desires to effectuate the Redevelopment Plan for
Redevelopment Project Area No. 4, now a part of Merged Project Area #1, by providing
for the development of a regional retail shopping center within a portion of the
approximately 36-acre vacant property at the northeast corner of Gene Autry Trail and
Ramon Road ("Shopping Center' and "Shopping Center Site") in the City of Palm
Springs, California ("City"); and
WHEREAS, Agency is the fee owner of certain real property, totaling approximately
14.95 acres, located at the northeast corner of Gene Autry Trail and Ramon Road, Palm
Springs, California ("Property")which is a portion of the Shopping Center Site; and
WHEREAS, Licensee has acquired that portion of the Shopping Center Site which is not
owned by Agency; and
WHEREAS, a true and correct map of the Shopping Center Site, including the Property,
is attached hereto and incorporated herein as Exhibit"A"; and
WHEREAS, the Shopping Center Site was previously used as a dump site and requires
extensive remediation before construction of the Shopping Center can commence; and
WHEREAS, on April 4, 2002, Licensee entered into an Exclusive Agreement to
Negotiate with the Agency relating to the remediation and development of the Shopping
Center, which agreement has been extended to April 15, 2004; and
WHEREAS, Licensee is experienced in shopping center development and remediating
sites subject to environmental contamination and has dealt with the major tenants who
might occupy the Shopping Center; and
WHEREAS, Licensee has prepared a remediation action plan ("RAP") detailing
Licensee's plan to clean up the Shopping Center Site; and
WHEREAS, the RAP has been submitted to the County of Riverside Health Services
Agency ("County') as the lead agency for the Shopping Center Site's remediation and to
the California Department of Toxic Substances Control ("DTSC"); and
WHEREAS, the RAP was approved by DTSC on March 4, 2004; and
C raww'F_ COO
WHEREAS, the RAP permits Licensee to remediate the soil conditions on the entire
Shopping Center Site, including the Property; and
WHEREAS, the Agency and Licensee are processing a disposition and development
agreement ("DDA") relative to the remediation of the Shopping Center Site and the
construction of the Shopping Center; and
WHEREAS, Licensee now desires to commence the remediation of the Shopping Center
Site and is prepared to commence the remediation process, pursuant to the RAP; and
WHEREAS, Agency would like Licensee to commence remediation of the Property
concurrent with the remainder of the Shopping Center Site,
NOW THEREFORE BE IT RESOLVED by the Community Redevelopment Agency of
the City of Palm Springs, that
The License Between the Community Redevelopment Agency of the City of Palm
Springs and Geiger, LLC for Performance of Remediation Work, in a form acceptable to
Agency Counsel, is hereby approved.
ADOPTED this day of 2004.
AYES:
NOES:
ABSENT:
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, CALIFORNIA
By
Assistant Secretary Chairman
REVIEWED & APPROVED AS TO FORM
C �aop6 2W
RESOLUTION NO.
OF THE COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, CALIFORNIA
APPROVING A CONTRACT SERVICES
AGREEMENT WITH DUDEK & ASSOCIATES IN AN
AMOUNT NOT TO EXCEED $28,870 FOR
REMEDIATION MONITORING SERVICES FOR
AGENCY-OWNED LAND LOCATED AT THE
NORTHEAST CORNER OF RAMON ROAD AND
GENE AUTRY,TRAIL
WHEREAS, the Agency is a public body, corporate and politic, exercising governmental
functions and powers and organized and existing under the Community Redevelopment Law
of the State of California (Health and Safety Code §§ 33000, et seq.); and
WHEREAS, the Agency desires to effectuate the Redevelopment Plan for Redevelopment
Project Area No. 4, now a part of Merged Project Area #1, by providing for the development
of a regional retail shopping center within a portion of the approximately 36-acre vacant
property at the northeast corner of Gene Autry Trail and Ramon Road ("Shopping Center"
and "Shopping Center Site") in the City of Palm Springs, California ("City"); and
WHEREAS, Agency is the fee owner of certain real property, totaling approximately 14.95
acres, located at the northeast corner of Gene Autry Trail and Ramon Road, Palm Springs,
California ("Property")which is a portion of the Shopping Center Site; and
WHEREAS, the Shopping Center Site was previously used as a dump site and requires
extensive remediation before construction of the Shopping Center can commence; and
WHEREAS, on April 4, 2002, Geiger, LLC ("Developer") entered into an Exclusive
Agreement to Negotiate with the Agency relating to the remediation and development of the
Shopping Center, which agreement has been extended to April 15, 2004; and
WHEREAS, Developer has prepared a remediation action plan ("RAP") detailing Licensee's
plan to clean up the Shopping Center Site, and a true and correct copy of the RAP is
attached hereto and incorporated herein as Exhibit"B"; and
WHEREAS, the RAP has been submitted to the County of Riverside Health Services Agency
("County") and to the California Department of Toxic Substances Control ("DTSC"); and
WHEREAS, the RAP was approved by DTSC on March 4, 2004, and the RAP permits
Developer to remediate the soil conditions on the entire Shopping Center Site, including the
Property; and
WHEREAS, the Agency and Developer are processing a disposition and development
agreement ("DDA") relative to the remediation of the Shopping Center Site and the
construction of the Shopping Center; and
WHEREAS, Licensee desires to commence the remediation of the Shopping Center Site and
is prepared to commence the remediation process, pursuant to the RAP; and
WHEREAS, Agency would like Licensee to commence remediation of the Property
CIr(:� 17 .
concurrent with the remainder of the Shopping Center Site;
WHEREAS, the Agency desires to have expertise in the area of remediation during the
remediation project to advise it on the status of the remediation; and
WHEREAS, Dudek & Associates, Inc., is currently under contract with the City of Palm
Springs to prepare an Environmental Impact Report for the Shopping Center Project and has
significant experience in landfill remediation.
NOW, THEREFORE, BE IT RESOLVED by the Community Redevelopment Agency of the
City of Palm Springs, California approves a Contract Service Agreement with Dudek &
Associates, Inc. not to exceed $28,870 for remediation monitoring services for Agency-
owned property located at the northeast corner of Ramon Road and Gene Autry Trail.
ADOPTED this day of , 2004.
AYES;
NOES:
ABSENT:
ATTEST: COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF PALM SPRINGS, CALIFORNIA
By; By:
Assistant Secretary Chairman
REVIEWED &APPROVED AS TO FORM: