HomeMy WebLinkAboutA4310 - LOWES HOME IMPROVEMENT LEASE Lowe's HIW, Inc. .
• Business Development Lease
AGREEMENT #4310
M06746, 11-15-00
AGREEMENT -- - - - - - -- --
THIS AGREEMENT (herein "Agreement") is made and entered into this
day of November , 2000 , ("Effective Date" ) by and between the City
of Palm Springs , a municipal corporation ("City") and Lowe ' s HIW, Inc . ,
a Washington corporation ("Lowe ' s") .
RECITALS
WHEREAS , Lowe' s has entered into a business development lease with
respect to certain premises located along Ramon Road in the City of Palm
Springs , State of California ("Lowe ' s Property") ;
WHEREAS , Ramon Road is a Major Thoroughfare , designated on the City
of Palm Springs General Plan ;
WHEREAS , Ramon Road is located adjacent to Lowe ' s Property ;
WHEREAS , as a condition of approval of the Major Architectural
Approval (Case No. 3 . 1795) and Tentative Parcel Map 29450 for Lowe ' s Home
Improvement Center , Lowe ' s is obligated to construct , or provide for the
construction of specified improvements to Ramon Road as further described
at Exhibits "A" and "B" ("Improvements") ;
WHEREAS , the City has initiated City Project 99-13 , through a duly
awarded contract to Granite Construction Company ("Granite") to construct
the Improvements within Ramon Road adjacent to Lowe ' s Property ;
WHEREAS , the Improvements to be constructed by Lowe ' s will , in part,
conflict with the Ramon Road improvements to be constructed by the City
as part of City Project 99-13 ; and
WHEREAS , , Lowe ' s has agreed , and hereby agrees to provide payment
to the City for the costs of constructing the Improvements and the City
has agreed to construct the same or otherwise satisfy Lowe ' s obligation
to construct , or provide for the construction of , the Improvements .
NOW THEREFORE , the parties hereby agree as follows :
1 .0 SERVICES OF LOWE ' S
1 . 1 Scope of Services .
In compliance with all of the terms and conditions of this
Agreement , the City shall cause to be performed its obligations as set
forth in the "Scope of Services" attached hereto as Exhibit "A" and
incorporated herein by reference .
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0
1 . 2 Compliance With Law.
All work and services rendered hereunder shall be provided in
accordance with all ordinances , resolutions , statutes , rules , and
regulations of the City and any Federal , State or local governmental
agency of competent jurisdiction .
1 . 3 Compliance with Conditions of Approval
City acknowledges that Lowe ' s performance hereunder is in lieu of
Lowe ' s constructing the improvements to Ramon Road in connection with
Lowe ' s initial development of the Lowe ' s Property , and completely and
fully satisfies Lowe ' s obligation under Condition Nos . 46 , 47 and
Engineering Department Condition Nos . 6 , 7 , 10 , 12 , and 13 of the
Conditions of Approval for Case No. 3 . 1795 and Tentative Parcel Map 29450
for Lowe ' s Home Improvement Center .
1 . 4 Self Help .
In the event the City fails to commence construction of the
Improvements by November 16 , 2000, or complete construction of the
Improvements by January 26 , 2001 , Lowe ' s shall have the right , but not
the obligation , to complete all or any portion of the Improvements . The
provisions of Section 1 . 3 above shall not be affected , minimized or
otherwise modified on account of Lowe' s electing to complete all or any
portion of the Improvements .
2 . 0 ADVANCE PAYMENT TO CITY: CONTRACT SUM
2 . 1 Contract Sum .
Lowe ' s shall pay to the City the total amount of Ninety-Four
Thousand Seven Hundred Two and 25/100 Dollars ($94 , 702 . 25) ( "Contract
Sum") , as set forth in Exhibit "B" hereto , in the manner provided at
Section 2 . 2 below. The Contract Sum is based upon contract bid prices
provided to City by Granite in conjunction with the construction
agreement for City Project 99-13 . The Contract Sum shall be subject to
modifications for City-approved change orders in accordance with Exhibit
"Al
2 . 2 Payment Method .
Lowe ' s shall pay to the City the Contract Sum, in its entirety ,
within five (5) weekdays , excluding holidays , from the Effective Date of
this Agreement , as first written above . Any additional costs payable
by Lowe ' s as a result of any City-authorized change order shall be paid
by Lowe ' s to City within five weekdays , excluding holidays , of the City ' s
approval of such change order in accordance with the requirements of
Exhibit "A" .
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3 . 0 COORDINATION OF WORK
3 . 1 Representative of Lowe ' s
Tom Emil is hereby designated as being the principal and
representative of Lowe ' s authorized to act on its behalf with respect to
the obligations specified herein and make all decisions in connection
therewith .
3 . 2 Contract Officer .
The City Engineer is hereby designated as being the representative
of the City authorized to act on its behalf with respect to the work and
services specified herein and make all decisions in connection therewith
( "Contract Officer" ) . The City Manager of City shall have the right to
designate another Contract Officer by providing written notice to Lowe' s .
3 . 3 Prohibition Against Subcontracting or Assignment
Neither this Agreement nor any interest herein may be assigned or
transferred , voluntarily or by operation of law, without the prior
written approval of City. Any such prohibited assignment or transfer
shall be void .
4 . 0 TERM
This Agreement shall continue in full force and effect until the
completion of the Improvements .
5 .0 MISCELLANEOUS
5 . 1 Non-liability of City Officers and Employees
No officer or employee of the City shall be personally liable to
Lowe ' s , or any successor in interest , in the event of any default or
breach by the City or for any amount which may become due to Lowe ' s or
to its successor , or for breach of any obligation of the terms of this
Agreement .
5 . 2 Conflict of Interest .
No officer or employee of the City 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 affects 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 .
Lowe ' s warrants that it has not paid or given and will not pay or give
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• •
any third party any money or other consideration for obtaining this
Agreement .
5 . 3 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 City,
to the City Manager and to the attention of the Contract Officer , CITY
OF PALM SPRINGS , P . O . Box 2743 , CA 92263-2743 , and in the case of
Lowe ' s , to the person at the address designated on the execution page of
this Agreement .
5 . 4 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 .
5 . 5 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 with the exception of City land use and planning
documents relating to Case No. 3 . 1795 and Tentative Parcel Map 24950 .
Such City planning documents may be used to determine the scope of
Lowe ' s obligations and are hereby incorporated by reference for that
limited purpose . This Agreement may be amended at any time by the mutual
consent of the parties by an instrument in writing .
5 . 6 Severability .
In the event that part of 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 portions 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 .
5 . 7 Waiver .
No delay or omission in the exercise of any right or remedy by a
nondefaulting party on any default shall impair such right or remedy or
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be construed as a waiver . A party ' s 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 .
5 . 8 Attorneys ' Fees .
If either party to this Agreement is required to initiate or defend or
be 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 , whether or
not the matter proceeds to judgment .
5 . 9 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) 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 and entered into this
Agreement as of the date first written above .
"City" :
CITY OF PALM SPRINGS ,
a municipal corporation,
City Manager
TEST:
City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
City kt�rney
"Lowe ' s" :
LOWE ' S HIW, INC . ,
a Washington corporation
By. —7111, 1. ✓ti�`�
Name : Michael L . Skiles
Title : Vice President
By : l Name : Thomas E . Maddox
Title : Assistant Secretary
Address : 1530 Faraday Avenue
Suite 140
Carlsbad , CA 92008
[END OF SIGNATURES]
&UP EtO),S1�D L Viz' I N,'627/014084-0005
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STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On , 2000 before me, Linda Perry, Notary Public, personally appeared Michael
L. Skiles, personally known to me to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and that
by his signature on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
LINDA PERRY
GOM 0 #1197603
� NOTARV IEGO OUNlYNl4� "I ATURE OF NO TAR
•� SAN DIEGO COLINl'Y 7
r an-xw CDMM.EXP.OC'r.30,2002
STATE OF CALIFORNIA
COUNTY OF SA)N DIEGO
On C) -y0 , 2000 before me, Linda Perry, Notary Public, personally appeared Thomas
E. Maddox, personally known to me to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and that
by his signature on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and J official seal.
LINDA PER„YC.,. .
CDMM.#1197603
(7=1_ NOTARY P116LIC-CALWORNIAW SIGNATURE OF NOTARY
� ' i^ sAN DICGD couNry 0
<� CDMM.EXP.OC r N 2002'a
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EXHIBIT "A"
SCOPE OF SERVICES
i . The Project : The project consists of Improvements to Ramon Road
required to be constructed by Lowe ' s as specified in Case No. 3 . 1795
and Tentative Parcel Map 24950 , which include, but are not limited
to: construction of a sixty-seven (67) feet wide main entrance ;
construction of a twenty-four (24) feet wide secondary entrance ;
construction of eastbound and westbound median breaks ; and
relocation of an existing fifty (50) feet wide roadway , for the
portion of Ramon Road that is adjacent to Lowe ' s development which
is the subject of Case No. 3 . 1795 and Tentative Parcel Map 24950 .
Lowe ' s acknowledges that the Improvements shall be constructed by
City ' s duly selected construction contractor , Granite .
2 . Contract Bid Prices for the Project : The cost of the Improvements
hereunder shall be based on the contract bid prices for City Project
99-13 , as shown on Exhibit "B" hereto .
3 . Lowe ' s Obligation to Pay Full Cost of Improvements : In lieu of
constructing or providing for the construction of the Improvements
pursuant to Case No . 3 . 1795 and Tentative Parcel Map 24950 , Lowe ' s
shall pay the full cost of the Improvements in accordance with
Section 2 . 2 and Exhibit "B" .
4 . Change Orders . The City may make any change order to the
specifications of the Improvements as may be necessary from
time-to-time to complete the Improvements , and any costs
therefor shall be payable by Lowe ' s pursuant to Section 2 . 2 of
this Agreement in addition to the Contract Sum . Any City
authorized change order shall require prior written notice by
City to Lowe ' s authorized representative . After Lowe ' s receipt
of such notice and unless waived by Lowe ' s , City and Lowe ' s
shall meet to discuss any proposed change order . Lowe ' s shall
be entitled to review the proposed change orders , including
any plans therefor prior to the City ' s approval of the change
order .
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EXHIBIT "B"
SCHEDULE OF PAYMENT
i . Cost of Improvements Payable by Lowe ' s : Lowe ' s shall pay the
following costs , which comprise the Contract Sum, pursuant to
Section 2 of this Agreement . The following costs shall be separate
from any costs payable by Lowe ' s for any City-approved change order ,
as provided in Section 2 . 2 and Exhibit "A" herein :
Item of Work Unit Quantity Bid Price Cost
Remove Existing Curb and Gutter LF 444 $3 . 00 $1 , 332 . 00
Remove Existing Sidewalk SF 4860 $1 . 00 $4 , 860 . 00
Remove Existing AC Pavement SF 8 , 059 $1 . 00 $8 , 059 . 00
Remove Existing Cross Gutter SF 816 $1 . 00 $816. 00
Remove Existing Curb LF 829 $2 . 00 $1 , 658 . 00
Construct Type A1-6 Curb LF 1 , 223 $15 . 00 $18 , 345 .00
Construct Type A2-8 Curb LF 320 $17 . 00 $5 ,440. 00
Construct Curb Return and SF 2 , 886 $5 . 00 $14,430. 00
Spandrel
Construct Type D2 Cross Gutter SF 1 , 056 $6 . 00 $6 , 336 .00
Construct 4" Colored PCC SF 2 , 560 $3 . 00 $7 , 680 . 00
Sidewalk
Construct Median Cobble Stone SF 420 $5 . 00 $2 , 100. 00
Construct 5" AC Pavement SF 7 , 975 $1 . 50 11 , 962 . 50
Construct 4" Class II Base SF 7 . 97S $0 . 65 $5 , 183 . 75
Construct 4 Type C Curb Ramps LS 1 $6 , 500 . 00 $6 , 500 . 00
and
Install 180 LF Traffic
Striping per
Caltrans Standard Detail 38C
Total Cost $94 , 702 . 2
5
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