HomeMy WebLinkAboutA2995 - PS CLASSIC CODA INTER-CONTINENTAL GOLF CENTER P.S. Inter-Continental
OGolf Center Jt. Venture
Land Acq Agr & Escrow Instr.
AGREEMENT # 2995
LAND DISPOSITION AGREEMENT R17524, 5-28-91
ANI) ESCROW INSTRUCTIONS
THIS LAND DISPOSITION AGREEMENT ( "Agreement" ) is made
and entered into as of the ag01 day of � , 1991
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(the "Effective Date" ) , by and between THE CITY OF PALM
SPRINGS, CALIFORNIA, a general law city, duly organized and
existing under the Constitution and laws of the State of
California ( "City" ) , and PALM SPRINGS INTER-CONTINENTAL GOLF
CENTER JOINT VENTURE, a California general partnership
( "Developer" ) . City and Developer hereby agree as follows:
I. (§ 100) PURPOSE OF THE AGREEMENT
This Agreement and the Exhibits hereto are intended to
provide for, among other things, the acquisition by City of
certain real property designated herein as the "Golf Course
Site" and the development of the "City Project" thereon. The
acquisition of the Golf Course Site and development of the
City Project pursuant to this Agreement, and the fulfillment
generally of this Acreement, are in the vital and best
interests of the City, and the health, safety, morals, and
welfare of its residents, and in accordance with the public
purposes and provisions of the applicable federal, state and
local laws and requirements .
2/347/014084-0031/01 5/29/91
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II . ( § 200) CERTAI]V DEFINITIONS
The following terms as used in this Agreement shall have
the meanings given unless expressly provided to the contrary
herein:
A. ( § 201 ) Acquisition Agreements
The term "Acquisition Agreements" shall mean those
certain agreements, entered into or to be entered into, by
and between Developer and each "Seller" , and as amended from
time to time, pursuant to which Developer has or will have
the right to purchase the portion of the "Acquisition
Property" owned by each Seller . The Acquisition Agreements
consist of the following: ( i) Purchase and Sale Agreement
and Escrow Instructions dated as of December 31, 1988 by and
between Developer ' s predecessor-in-interest as the Buyer, and
Lee A. Freeman, Terese Lackritz, Rosetta Leeb and the Estate
of Irving Rubin, as Seller; ( ii) Purchase and Sale Agreement
and Escrow Instructions dated as of November 11, 1988 by and
between Developer ' s predecessor-in-interest as the Buyer, and
Mary Edelman, Mark Kogut, Trustee of the Nyrin Family Trust,
Ethel Lavine, and Ethel Lavine as Trustee of the Lee A.
Lavine Testamentary Trust, collectively as the Seller ; ( iii )
Contract for Sale/Purchase of Real Property and Escrow
Instructions dated January 8, 1991 by and between D. T. Palm
Springs Inter-Continental Golf Centers Enterprises, Ltd. as
the Buyer and AEC Limited Partnership, a Virginia limited
partnership, as Seller; and ( iv) a lease or an easement to be
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entered into by and between Developer and Bird Products,
covering the parcel shown and legally described in Exhibit
No. 2 attached hereto, on terms satisfactory to Developer and
City.
B. (§ 202) Acquisition Property
The term "Acquisition Property" shall mean that certain
real property, owned by the Sellers severally, located in the
City of Palm Springs, County of Riverside, State of
California, and generally described and/or depicted in
Exhibit No. IA. If .and to the extent Developer shall have
acquired the Acquisition Property or a portion thereof prior
to the Effective Date, the Acquisition Property or such
portion thereof shall be deemed to be part of the "Developer
Property" .
C. ( § 203) Bonds
The term "Bonds" shall mean Certificates of
Participation or bonded indebtedness of City underwritten on
an enterprise fund basis with enhancement from Mello Roos
financing and from the Operating Deficit letter of credit to
be provided by Developer, but without recourse to the City ' s
general fund, in a maximum amount equal to the appraised fair
market value of the completed City Project, plus capitalized
interest and all financing costs approved by City and
Developer .
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D. (§ 204) City Project
The term "City Project" shall mean a public golf course
and related facilities to be developed on the Golf Course
Site and all on-site and off-site improvements and
infrastructure required in connection therewith. The City
Project shall include, without limitation, a 27-hole
championship golf course ( including a 9-hole lighted course) ,
a 15,000 square foot clubhouse, lighted driving range,
maintenance facilities and parking, and all furnishings,
fixtures and equipment as scheduled in the Construction
Agreement to be negotiated and approved by City and
Developer .
E. ( § 205) Construction Agreement.
The term "Construction Agreement" shall mean that
certain Golf Course Design and Construction Management
Agreement to be entered into between City and Developer ,
pursuant to which Developer shall have primary responsibility
for supervising the design and construction of the City
Project substantially in accordance with plans,
specifications and schedules to be approved by City as
provided herein, and which shall also guarantee that the City
Project will be designed, processed through all applicable
governmental authorities, constructed, equipped, furnished
and turned over to City on a "turnkey" basis (with
improvements and furnishings, fixtures and equipment of a
quality and quantity approved by City and Developer in said
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Agreement) , with all overruns paid by Developer . The
Construction Agreement: shall include, without limitation, the
provisions specified in Section 405. 4 below.
F. ( § 206) Declaration
The term "Declaration" shall mean that certain
Declaration of Covenants , Conditions and Restrictions to be
executed by Developer and recorded against the Developer
Site, pursuant, to which the Developer shall form a non-profit
association among all owners of parcels within the Developer
Project and create reciprocal easements, use restrictions,
standards for maintenance and operation, and certain other
covenants and agreements for the "Developer Project" to be
maintained and operated in a coordinated and integrated
manner.
G. ( §207 ) Deed
The term "Deed" shall mean a grant deed conveying the
"Golf Course Site" from Developer to City. The Deed shall
include, without limitation, those provisions specified in
Section 406 . 7 below.
H. ( §208) Developer Project
The term "Developer Project" shall mean the uses to be
developed on the "Developer Site" , which uses may include,
without limitation, a hotel or hotels of not less than 225
rooms and food service facilities, a conferencing/training
center of approximately 50,000 square feet including food
services facilities, parking and related outdoor spaces, and
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nineteen (19 ) planned development sites, of up to four acres
in area, with combined gross building square footage of up to
approximately 1.26 million square feet , to be developed for
corporate office, training or retreat, research and
development/light manufacturing uses, and such other uses as
are permitted pursuant to the City' s MIP zone, including
conditional uses thereunder, or as are otherwise permitted
pursuant to the "Development Agreement" .
I . (§ 209 ) Developer Property
The term "Developer Property" shall mean that certain
real property, owned by Developer or any of its partners,
located in the City of Palm Springs, County of Riverside,
State of California, described and/or depicted in Exhibit No.
1B.
J. (§ 210) Developer Site
The term "Developer Site" shall mean all portions of the
Entire Site other than the Golf Course Site.
K. ( § 211) Development Agreement
The term "Development Agreement" shall mean that certain
Development Agreement to be entered into between City and
Developer, which, if approved, pursuant to California
Government Code Sections 65864 through 65869 . 5 , will permit
the Developer Project and City Project to be developed and
constructed on the Entire Site. The Development Agreement
shall include, without; limitation, the provisions specified
in Section 406. 3 below.
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L. ( § 212) Development and Management Agreements
The term "Development and Management Agreements" shall
mean the Construction Agreement, Development Agreement, and
Management Agreement .
M. ( § 213) Entire Site
The term "Entire Site" shall mean the Developer Property
and the Acquisition Property.
N. ( § 214) Golf Course Site
The term "Golf Course Site" shall mean that portion of
the Entire Site described in Exhibit No. 3 attached hereto,
together with those easements appurtenant thereto and
described in the Deed or Project Agreement .
O. (§215) Hazardous Substances
The term "Hazard(Dus Substances" shall have the meaning
ascribed to it in Section 410. 4(e) below.
P. ( § 216 ) Letter of Credit
The term "Letter of Credit" shall mean the letter of
credit to be delivered, to the City pursuant to the Operating
Guaranty.
Q. ( § 217) Management Agreement
The term "Management Agreement" shall mean a golf course
management agreement to be entered into between City and a
reputable management company which has substantial experience
in the management and operation of first class golf courses ,
which shall be approved by Developer pursuant to Section
406 . 5 below.
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R. (9218) Operating Guaranty.
The term "Operating Guaranty" shall mean the Operating
Guaranty containing those provisions described in Section
406. 8 below, to be negotiated and approved by both parties as
a condition to the consummation of this transaction.
S. ( § 219) Project Agreement
The term "Project Agreement" shall mean the Project
Easement and Restriction Agreement to be entered into between
City and the owner ' s association to be formed under the
Declaration, containing those provisions described in Section
406 . 7 below.
T. ( § 220) Sellers
The term "Sellers" shall mean Lee A. Freeman, Terese
Lackritz, Rosetta Leeb and Estate of Irving Rubin,
collectively, with respect to the portion of the Acquisition
Property covered by that certain Purchase and Sale Agreement
and Escrow Instructions dated as of December 31, 1988; Mary
Edelman, Mark Kogut, Trustee of the Nyrin Family Trust, Ethel
Lavine, and Ethel Lavine as Trustee for the Lee A. Lavine
Testamentary Trust, collectively, with respect to the portion
of the Acquisition Property covered by that certain Purchase
and Sale Agreement and Escrow Instructions dated as of
November 11, 1988; AEC Limited Partnership, a Virginia
limited partnership, with respect to that portion of the
Acquisition Property covered by that certain Purchase and
Sale Agreement and Escrow Instructions dated January 8, • 1991 ;
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and Bird Products with respect to the lease or easement over
that portion of the Entire Site described in Exhibit No. 2,
and/or the successors and assigns of any of the above.
U. ( § 221) Senca Advance
The sum of THREE: HUNDRED EIGHTY FIVE THOUSAND DOLLARS
($385,000. 00) to be paid by Developer to City as hereinafter
provided.
V. (§ 222) Additional Definitions
the following listed terms shall have the meaning found
in the section reference located next to such term:
"Additional Purchase Price" - § 403
"Base Purchase Price" - § 406 . 2
"CEQA" - § 405 . 4
"CGD" - § 402.
"City" - § 301
"City Costs" - § 404
"City ' s Conditions to Closing" - § 407 . 1
"Close of Escrow" - § 408 . 2
"Closing Date" - ;5 408. 2
"Developer" - § 302
"Developer ' s Conditions to Closing" - § 407 . 3
"Environmental Claim" - § 410 . 4(a)
"Environmental Cleanup Liability" - § 410 . 4(b)
"Environmental Compliance Cost" - § 410 . 4 (c)
"Environmental Law" - § 410 . 4 (d)
"Escrow Agent" - § 408 . 1
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"Escrow" - § 408. 1
"Expenses" - § 406 . 8(a)
"Financial Projections" - § 402( i )
"First Consultant" - § 402 . 1
"Fiscal Agent Agreement" - § 406 . 2
"Golf Course Facilities" - § 406. 4(a)
"Good Funds" - § 402 . 5
"Gross Revenues" - § 406 . 8 (a)
"Hazardous Report" - § 410 .1
"Hotel Bonus" - § 403
"Improvement Cost Estimate" - § 402 . 2
"Indemnified Parties" - § 410 .3
"Management Company" - § 406 . 5
"Peat Marwick Study" - § 402. 1
"PDD" - § 406.6
"Permitted Exceptions" - § 405 . 1
"Positive Cash Flow" - § 406.8(a)
"Purchase Price - § 402
"Second Consultant" § 402 . 1
"Survey" - § 405 . 1
"Title Company" - § 405 .1
"Title Documents" - § 405 . 1
"Title Policy" - 405 . 3
"Title Report" - 405 . 1
"Tract Map" - § 406. 6
"Unpermitted Exceptions" - § 405 . 2
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III . ( § 300 ) PARTIES TO THE AGREEMENT
A. ( § 301) City
City is a general law city, duly organized and existing
under the Constitution and laws of the State of California.
The address of City for notice purposes is 3200 Tahquitz-
McCallum, Palm Springs, California 92263-2743 . The term
"City" as used in this Agreement includes the City of Palm
Springs, including all departments and agencies of City and
any assignee of, or successor to, its rights, powers and
responsibilities , approved by Developer pursuant to Section
704 hereof.
B. ( § 302 ) Developer
Developer is a California general partnership, whose
general partners are D.T. Palm Springs Inter-Continental Golf
Centers Enterprises, I,td. , a California limited partnership,
and Palm Springs Inter-Continental Golf Center Associates , a
California general partnership. The address of Developer for
notice purposes is Annis, Mitchell, Cockey, Edwards & Roehn,
One Tampa City Center Building, Suite 2100 , Tampa, Florida
33601 . The term "Developer" as used in this Agreement
includes Palm Springs Inter-Continental Golf Center Joint
Venture, and any assignee of, or successor to, its rights,
powers and responsibilities, approved by City pursuant to
Section 704 hereof.
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IV. ( § 400 ) ACOUISII'ION OF GOLF COURSE SITE
A. (§ 401) Conveyance of Golf Course Site by Developer
In accordance with and subject to all of the terms,
covenants, and conditions of this Agreement, Developer agrees
to sell to City, and City agrees to purchase from Developer ,
the Golf Course Site.
B. ( § 402) Determination of Purchase Price
The purchase price for the Golf Course Site ( the
"Purchase Price" ) shall be equal to its current fair market
value (without an adjacent hotel development) which value
shall be determined by appraisal in accordance with the
procedures set forth below:
1. Financial Projections of Golf Course Revenues .
Developer has presented to the City a market and
financial assessment of the proposed City Project
prepared by KPMG Peat Marwick ( "First Consultant" ) dated
June 1990 and updated by the preliminary draft of the
Financial Forecast from January 1992 to December 2001
( "Peat Marwick Study" ) . City shall select a second
consultant ( "Second Consultant" ) with expertise in
valuing golf courses to review the Peat Marwick Study
and to conduct such other analysis as may be required to
provide a second expert opinion certificate on financial
projections for the completed City Project ( "Financial
Projections" ) for use in connection with issuance of the
Bonds, including, without limitation, a market demand
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and absorption analysis in the Palm Springs area and a
financial forecast for the City Project, both with and
without an adjacent hotel development. The identity of
the Second Consultant to be retained and paid by City,
at its expense, shall be approved by Developer and once
approved, both the City and Developer shall mutually
agree on the maximum fees to be paid to the Second
Consultant for its services. Developer shall contract ,
at its expense, for such updates and additional review
as may be required to procure an expert opinion
certificate on the Peat Marwick Study from the First
Consultant . within fifteen ( 15 ) days following
completion of both financial projections, the two
financial consultants shall meet in an effort to agree
on a single projection. If they are unable to reach
agreement within ten (10 ) days following completion of
the last financial analysis the provisions of Section
402 . 4 shall apply.
2 . Cost Estimates for City Project. Developer
has selected and City has approved Community Golf
Development, Inc. ( "CGD" ) to provide preliminary
estimates on the costs to complete the City Project on
the Golf Course Site, including, without limitation, all
predevelopment , design, permitting, processing, grading,
landscaping, constructing, installation and equipment
costs incurred before or after the Closing, together
with a reasonable contingency ( the "Improvement Cost
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Estimate" ) . City and Developer shall review and approve
all information provided to CDG as the basis for
determining the Improvement Cost Estimates and the
maximum fee agreed to be paid to CGD for its services,
within thirty ( 30 ) days following execution of this
Agreement, whereupon the Developer will retain CGD at
its expense. In the event either City or Developer is
not satisfied with the Improvement Cost Estimate
determined by CGD, either City or Developer can request
City to select a second estimator , which second
estimator shall be acceptable to Developer . The City
shall retain the second estimator, at its expense,
following City and Developer ' s agreement on any updates
required to the information to be provided to the second
estimator and the maximum fee to be paid to the second
estimator . Each estimator shall be asked to provide a
detailed preliminary cost estimate reflecting all line
items and unit prices taken into account in formulating
the estimates. Within fifteen (15) days following
completion of both estimates, the estimators shall meet
to review and attempt to agree on a single estimate. If
they are unable to do so within ten (10 ) days following
completion and submission of the last of the two ( 2)
estimates, the provisions of Section 402 . 4 shall apply.
City and Developer shall each cause the Improvement Cost
Estimates to be updated by the estimator preparing the
preliminary cost estimates when final plans for the City
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Project have been approved by both parties and when the
Construction Agreement and all other contracts
contemplated thereunder have been finalized.
3. Aporai:aal of Golf Course Site . Within thirty
( 30) days following the date of this Agreement, City
shall select a real estate appraiser with experience in
valuing golf courses, which appraiser shall be
acceptable to Developer . City shall retain the
appraiser , at its expense, following approval by City
and Developer of (a) the maximum fee to be paid to the
appraiser ; and (b) the instructions to be provided to
the appraiser . The appraiser shall be instructed to
determine, within thirty ( 30 ) days following completion
and delivery of the Financial Projection and the
Improvement Cost Estimate, the fair market value of the
completed City Project and the fair market value of the
Golf Course Site, both with and without the adjacent
hotel development more particularly described in Section
403 below. The fair market values of the Golf Course
Site, both with and without the adjacent hotel
development, shall be determined by first establishing
the fair market value of the completed City Project,
based on the projected earnings reflected in the
Financial Projection and the amount and rate of the
financing to be provided by the Bonds , and then
subtracting therefrom the Improvement Cost Estimate, (as
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updated prior to the Closing) . The fair market value of
the Golf Course Site with the adjacent hotel development
shall be computed based upon the most conservative
projections of additional rounds of play to be generated
by the hotel on a per room basis, as determined by the
Financial Projections. In the event either City or
Developer is not satisfied with the first appraisals,
Developer shall select a second qualified appraiser
acceptable to City. Developer shall retain the second
appraiser, at its expense, following agreement by City
and Developer of the maximum fees to be paid to the
second appraiser . Following completion of the second
appraisal, both appraisers shall meet in an effort to
agree on a single appraisal . If they are unable to do
so within ten (10) days following completion and
submission of the last of the appraisals, the provisions
of Section 402. 4 shall apply.
4. Resolution of Discrepancies. If City and
Developer fail to mutually agree upon the Financial
Projections, Improvement Cost Estimate and/or Appraised
Values, and the first two consultants, estimators and/or
appraisers fail to mutually agree on a single
projection, estimate and/or valuation, then (a) if the
aggregate or final value or cost numbers produced by the
two consultants, estimators and appraisers vary by 10%
or less, then the average of the two amounts shall be
used; and (b) if the numbers vary by more than 10%, then
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the two consultants, estimators and/or appraisers shall
mutually agree on a third consultant, estimator or
appraiser, as applicable. Upon completion of the same
analysis by the third party so chosen, the average of
the two (2) numbers closest in amount shall represent
the Financial Projection, Improvement Cost Estimate
and/or Appraised Value.
5 . Payment of Purchase Price. The Purchase Price
of the Golf Course Site Shall be payable as follows:
(a) A "Base Purchase Price" in the amount
described in Section 406. 2 below shall be paid at
Closing;
(b) The amount by which the Purchase Price
exceeds the Base Purchase Price, if any, together with
interest thereon from the Closing until paid at the rate
received by the City on the escrowed proceeds from the
Bonds, shall be paid at such time as the net operating
income of the City Project exceeds debt service by a
ratio of at least 1 .15 for a period designated by City
and acceptable to Developer.
The Purchase Price shall be paid in "Good Funds" on the
"Closing Date" . "Good, Funds" shall mean a wire transfer of
funds, a cashiers or certified check drawn on a financial
institution with offices in the State of California, or cash.
C. ( § 403) Additional Purchase Price
In the event that a first class hotel such as Marriott
Residence Inn or Embassy Suites, with not less than 225 rooms
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is opened for business within the Developer Site within five
( 5) years following issuance of the Bonds, City shall pay to
Developer from bond proceeds an amount ( "Additional Purchase
Price" ) equal to the sum of (a) the difference between the
Purchase Price and the appraised value of the Golf Course
Site with an adjacent hotel development determined in
accordance with Section 402 . 3; and (b) the "Designated
Percentage" of the amount, if any, by which the net operating
income of the City Project after debt service, during the one
year period following opening of the hotel, exceeds the net
operating income after debt service projected in the
financial forecasts on which the appraised value of the Golf
Course Site with an adjacent hotel development, was based.
The component of the Additional Purchase Price identified in
clause (a) of the preceding sentence shall be payable by the
City to Developer within thirty ( 30) days after Developer ' s
written demand following the opening of not less than 225
hotel rooms on the Hotel Sites. The component of the
Additional Purchase Price described in clause (b) of the
second sentence above shall be payable within 30 days after
completion by the City of the final accounting for the fiscal
period in which the final day of the one ( 1) year measuring
period occurs. The "Designated Percentage" shall be
determined by City and Developer based upon input from the
appraisers retained to value the Golf Course Site.
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D. ( § 404) Developer Payments to City Before Closing
1. Cost Advance.
As consideration for and as a condition to the
effectiveness of this Agreement, Developer shall pay to City,
within five ( 5) days following full execution of this
Agreement, the sum ( "Cost Advance" ) of ONE HUNDRED THOUSAND
DOLLARS ($100,000 . 00) . City may pay from the Cost Advance
those costs incurred prior to and following the execution of
this Agreement for :Legal, financial, appraisal and other
consulting services provided to City in connection with this
Agreement and the transactions contemplated hereunder ,
provided the consultants used are approved by Developer and
the amount of each cost item is approved by Developer as
being reasonable in amount for the services provided or to be
provided ( "Approved Costs" ) . Following execution of this
Agreement, City and Developer will attempt to reach agreement
on budgets for specific consultants to be retained by each
party in consummating this transaction. If Approved Costs
exceed the Cost Advance, City shall not be required to
proceed further under this Agreement unless Developer
deposits with the City or contracts directly with the
consultant to pay the amount by which Approved Costs exceed
the Cost Advance. If City and Developer cannot agree on
those costs to be included as Approved Costs, either party
may terminate this Agreement upon not less than ten ( 10) days
prior written notice to the other. All sums paid to City
under this paragraph 404. 1 shall apply to Developer ' s
obligation to pay the Senca Advance.
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2. Repayment of Senca Advance.
Developer shall pay to City, concurrently with the
execution of the Development Agreement, the amount by which
the sum of TWO HUNDRED THOUSAND DOLLARS ( $200,000 .00) exceeds
those amounts previously paid by Developer to City pursuant
to Section 404. 1, which amount shall be applied in partial
satisfaction of the Senca Advance.
E. ( § 405) Title; Environmental Compliance
1. Title Report .
Within thirty ( 30) days after the Effective Date,
Developer shall deliver to City and to the City Attorney a
preliminary title report issued by Chicago Title Insurance
Company ( "Title Company" ) , covering the Golf Course Site and
based upon review by the Title Company of a current ALTA
Survey ( "Survey" ) of the Golf Course Site ( the "Title
Report" ) , together with true, correct and legible copies of
each of the documents and instruments referred to therein
(the "Title Documents" ) . City shall have fifteen (15 ) days
from receipt of the last of the Title Documents by City to
give Developer written notice of the City' s approval or
disapproval of each matter shown in the Title Report, Title
Documents or the Survey. City agrees to approve any
exceptions to title which in City' s reasonable judgment ( i)
do not interfere with, do not materially increase the cost of
and are not inconsistent with the development and maintenance
of the Golf Course Site for public golf course purposes; and
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( ii ) do not render tittle to the Golf Course Site unmarketable
or interfere with the ability of the owner of the Golf Course
Site to obtain public financing or institutional mortgage
financing for the Golf Course Site. The following shall
constitute the "Permitted Exceptions" :
(a) Real estate taxes not yet due and
payable. Assessments shall be prepaid by Developer at the
Closing;
(b) Easements and restrictions contained in
the Deed and Project Agreement approved by City and
Developer;
(c) The printed exceptions which appear in the
standard form ALTA owner ' s policy of title insurance issued
by Title Company in the State of California; and
(d) Exceptions approved by the City as
above-provided.
The failure of City to notify Developer in
writing of its objections, if any, to any matters affecting
title, other than Permitted Exceptions , within said fifteen
(15 ) day time period, shall be deemed to constitute City ' s
disapproval of the Title Documents.
All of the provisions of this Section 404 . 1
shall apply to any supplemental report issued by the Title
Company containing exceptions or other items not described by
the initial Title Report or any change reflected in any
revised Survey, except that City shall have fifteen ( 15 ) days
from its receipt of any such supplemental report and any
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Title Documents referred to therein, or such revised Survey,
to notify Developer in writing of its approval or objection
to the same.
2. Removal of Unpermitted Exceptions
Developer agrees that it will use its best efforts
to remove any matters affecting title objected to by City
( "Unpermitted Exceptions" ) within thirty ( 30 ) days following
written notice from City. If Developer should fail despite
such best efforts to remove any Unpermitted Exceptions,
Developer shall notify City in writing of what Unpermitted
Exceptions will not be removed. Developer ' s failure to so
notify City that such Unpermitted Exceptions will not be
removed shall be deemed to be Developer ' s commitment to
remove such Unpermitted Exceptions. City shall have fifteen
(15) days after receipt of Developer ' s notice to elect to
waive its disapproval of such Unpermitted Exceptions by
written notice to Developer of such waiver ( in which event
such Unpermitted Exceptions shall be deemed approved) or to
terminate this Agreement. Failure of City to provide such
written waiver within such fifteen ( 15) day period shall be
deemed City' s election to terminate this Agreement. In the
event City elects to terminate this Agreement in accordance
with the foregoing, neither Developer nor City shall have any
further obligations hereunder, except that the City shall
return to Developer all sums previously paid by Developer to
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City pursuant to Sections 404. 1 and 404. 2, less the Approved
Costs.
3 . Title Policy.
City shall accept title to the Golf Course Site
subject only to Permitted Exceptions and approved Title
Documents. Conclusive evidence of the availability of such
title shall be the willingness of Title Company to issue to
City, on the Closing Date, an ALTA extended coverage owner ' s
title insurance policy, with liability limits in the amount
of the Purchase Price, showing title to the Golf Course Site
vested in City subject: only to such Permitted Exceptions and
Title Documents approved by City in accordance with the
foregoing (the "Title Policy" ) .
4. Certification Under California Environmental
ualit Act .
Acquisition of the Golf Course Site and development
of the Developer Project and the City Project are a "project"
as that term is defined under the California Environmental
Quality Act (Public Resources Code Section 21000, et sea. and
Title 14, Code of Regulations Section 15000, et sea.
( "CEQA" ) . Accordingly, a condition precedent to the City ' s
obligation to purchase the Golf Course Site and develop the
City Project is the good faith certification by the City that
approval of these activities is in compliance with all
procedural and substantive rules and regulations of CEQA as
provided in Section 407 . 1( j ) hereof and the absence of any
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legal challenge to the sufficiency of such certificate not
dismissed with prejudice within sixty ( 60 ) days from initial
filing of the challenge or otherwise protected from future
legal challenge by expiration of applicable statutes of
limitation.
F. ( § 406) Pre-Closing Obligations .
1. Acquisition of Acquisition Property.
Developer shall use its reasonable and diligent
efforts in good faith to acquire the Acquisition Property on
or prior to the Closing Date upon the terms set forth in the
Acquisition Agreements (or upon such other terms as may be
reasonably satisfactory to Developer ) ; provided that nothing
herein shall require Developer to pay any amounts to any
Seller other than as expressly set forth in the Acquisition
Agreements . Developer hereby covenants that it shall comply
with all terms and provisions of the Acquisition Agreements,
unless the conditions to Developer ' s obligations hereunder
are not satisfied prior to the expiration of the then
existing term of the applicable Acquisition Agreement.
Developer shall have no obligation to extend any Acquisition
Agreement but shall immediately notify City if any
Acquisition Agreement has terminated, whereupon City and
Developer shall meet to determine if performance of this
Agreement should be postponed or terminated.
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2. Issuance of Bonds .
The City previously approved a resolution setting
in motion a public financing structure for the City Project.
As soon as reasonably possible after agreement on the
Purchase Price and the amount of the estimated Additional
Purchase Price, if any, City shall pursue issuance of the
Bonds. The City shall diligently negotiate and, assuming
successful negotiations enter into an agreement ( "Fiscal
Agent Agreement" ) with a fiscal agent reasonably satisfactory
to City providing for the sale of the Bonds. City shall
designate in writing to Developer , the amount of the Purchase
Price of the Golf Course Site available for disbursement at
the Closing, based on the maximum amount ( "Base Purchase
Price" ) which the underwriter recommends be financed in light
of the Financial Projection, amounts to be withheld for the
Improvement Cost Estimate, projected issuance costs ,
including, without limitation, capitalized interest and those
other finance costs identified and approved by City and
Developer . Provided Developer approves of the amount of the
Base Purchase Price that may be financed by the Bonds and
distributed to Developer at the Closing and the criteria
established to determine when the balance of the Purchase
Price and the Additional Purchase Price can be distributed to
Developer, City shall use its reasonable and diligent efforts
to cause the Bonds to be issued and to take all necessary
actions and proceedings pursuant to applicable law for the
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sale and delivery of the Bonds at such time and in such
amounts so that, prior to the Closing Date, the City shall
have sufficient funds to pay the Purchase Price and the
Additional Purchase Price. The Fiscal Agent Agreement and
other bond documents shall be delivered to Developer for its
review and comment, but not approval . Developer shall review
the offering memorandum and/or prospectus with respect to the
accuracy and completeness of all disclosures made regarding
the issuance of the Bonds and the description of the City
Project. Developer shall notify the City, to the best of
Developer ' s knowledge„ of any inaccuracy contained therein or
any additions or changes which should be made in order to
provide, to the best of Developer ' s knowledge, a complete and
accurate disclosure and description regarding the City
Project and the issuance of the Bonds, within ten (10) days
following Developer ' s receipt of the proposed offering
memorandum and/or prospectus . Notwithstanding the pro-
visions of this Section 406 . 2 or any other provision of this
Agreement, City shall not be obligated to issue and sell the
Bonds in the event they cannot be sold upon terms
satisfactory to City in the exercise of its sole discretion.
The parties agree and acknowledge that the City has not
represented, and does not represent, that the Bonds will be
sold, or sold in any particular amount, or that funding will
be available for the Project through the sale of bonds or any
other source. Failure or refusal on the part of the City to
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sell the Bonds or provide funding from any alternative
source, shall constitute and be a complete excuse to the
City ' s performance under the remainder of this Agreement and
an absolute defense to an action for breach.
3 . Approved of Development Agreement.
Promptly after the execution of this Agreement, the
City and Developer shall meet and confer for the purposes of
negotiating in good faith all of the terms and conditions of
the Development Agreement . Subject to Government Code
Sections 65864 through 65869 . 5 , City Municipal Code Section
9408 . 00 , and all other applicable laws or regulations, it is
the parties ' objective that the City adopt resolutions or
ordinances, as required by law, approving the Development
Agreement no later than thirty-one ( 31) days prior to the
Closing Date. The Development Agreement shall include,
without limitation, the following provisions:
(a) Construction by Developer of all other
streets and off-site improvements required in connection
with the development of the Developer Site;
(b) Restrictions on the right of Developer ,
for a period of five ( 5) years after the initial
issuance of the Bonds, to transfer either Hotel Site not
then improved with at least 225 first-class hotel rooms ,
other than to an entity approved by City, which approval
shall not be unreasonably withheld, so long as the
transferee evidences its intent to acquire the Hotel
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Site for purposes of constructing a hotel and not for
speculation;
(c) The nature of any traffic mitigation
measures to be satisfied by Developer on development of
Developer ' s Project and the agreement that the housing
mitigation measures applicable to Developer ' s Project
shall be payment of fees based on the Palm Desert
housing mitigation formula;
(d) A description of all vested entitlements
approved for Developer ' s Project and the City Project,
subject to all applicable governmental laws, rules and
regulations; and
(e) Donation of a parcel within Developer ' s
Site for a fire station; provided, however, that in the
event the parcel designated for a fire station is not
developed by the City for such purpose within five ( 5)
years following its donation to the City, then Developer
shall pay to City an in-lieu fee of EIGHTY THOUSAND
DOLLARS ( $80,000 .00) and City shall reconvey the parcel
to Developer . All costs of reconveyance shall be
payable by City, including title insurance costs.
(f) Cancellation of the Development Agreement
as to the City Project when the Golf Course Site is
transferred to the City.
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4. Approval of Construction Agreement.
Promptly after the execution of this Agreement, the
City and Developer shall meet and confer for the purpose of
negotiating in good faith all the terms and provisions of the
Construction Agreement. The negotiation, processing and
approval of the Construction Agreement shall be subject to
satisfaction of all requirements of all state and local laws,
rules and regulations regarding the subject matter of the
Construction Agreement . The Construction Agreement shall
include, without limitation, the following provisions:
(a) A detailed description of Developer ' s
responsibilities with respect to the design and
governmental processing of plans for the City Project
and with respect to Developer ' s supervision of the
construction, equipping and furnishing of a first class
27-hole championship quality golf course, nine ( 9 ) of
which will be lighted, 15 ,000 square foot clubhouse,
lighted driving range, maintenance yard and related
facilities and on and off-site infrastructure and
related improvements ( the "Golf Course Facilities" ) ;
(b) Identification of the components of
services and work to be provided by Developer and third
parties to accomplish the turnkey completion of the Golf
Course Facilities ;
(c) A description of those components of the
work which must be publicly bid and which contracts or
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purchase orders shall be entered into with third parties
by City and Developer ;
(d) A description of all plans, speci-
fications, schedules and contracts for the City Project
previously approved by City and the manner in which all
remaining plans, specifications, schedules and contracts
required in connection with the City Project will be
prepared, approved, finalized and implemented;
(e) A1.1 fees to be received by Developer for
or in connection with its services, (over and above that
payable to the contractors retained by Developer to
actually perform work or supply materials) ;
(f) Developer ' s guarantee to the City of the
full and satisfactory completion of the design,
development, construction, equipping, furnishing and
fixturizing of the City Project and the assurance that
all such work and the reimbursement to Developer for any
prior work or services concerning the City Project shall
not exceed the Improvement Cost Estimate;
(g) The amount of additional contingency to
be withheld from the Purchase Price to assure to the
City funds on hand to cover cost overruns. This amount
shall be released to Developer pursuant to the terms of
the Construction Agreement.
5 . Approval of Management Agreement.
Promptly after the execution of this Agreement ,
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City and Developer shall meet and confer for purposes of
selecting a reputable management company with substantial
experience in the operation and management of first class
golf course facilities to consult with City and Developer on
the equipping and Eixturizing of the golf course and
clubhouse and to operate the City Project on completion ( the
"Management Company" ) . Upon selection of the Management
Company by the City and Developer , City and Management
Company shall negotiate and enter into the Management
Agreement, the form and content of which shall be approved by
Developer , which approval shall not be unreasonably withheld.
6. Processing Developer ' s Applications.
Developer shall diligently make all applications
and take all other actions necessary to obtain approvals of
the final vesting tract map subdividing the Entire Site
( "Tract Map" ) , the General Plan Amendment, the creation of
the planned development district for the Entire Site ( "PDD" ) ,
and all other approvals and entitlements necessary for the
Developer Project and the City Project substantially within
the times indicated on the Project Schedule attached hereto
as Exhibit No. 5 . Developer shall be responsible for all
expenses, costs and application and other fees payable in
connection with processing the Tract Map and other approvals
and entitlements necessary for the City Project and Developer
Project. Developer shall cause to be performed prior to the
recordation of the Tract Map all conditions of approval to
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the recordation of such Tract Map and shall bear all cost and
expenses relating thereto.
City shall diligently process and expedite all
applications and submittals of Developer in connection with
the Tract Map, General Plan Amendment , creation of the PDD,
and all subdivision approvals and entitlements required for
the Developer Project and City Project, subject, however , to
the requirements of all applicable laws , rules , regulations
and City procedures for processing and approving the Tract
Map and other such entitlements .
7 . Alpprovail of Deed and Project Agreement.
Promptly after execution of this Agreement, City
and Developer shall meet and confer for the purpose of
negotiating in good faith, the form of the Deed and Project
Agreement . The Deed shall include, without limitation, the
following:
(a) A].1 easements to be granted over
Developer ' s Site appurtenant to the Golf Course Site and
required or convenient for operation of the City
Project; and
(b) Any easements to be reserved over the
Golf Course Site for the benefit of and appurtenant to
the Developer ' s Site.
The Project Agreement will include, without
limitation, the following:
(a) Restrictions limiting the Golf Course
Site for use as a public golf course for a term of
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fifty ( 50 ) years„ and a right of first refusal in favor
of Developer and its designated successors and assigns
to purchase the Golf Course Site effective upon
expiration of such restriction;
(b) The terms on which preferred tee times at
the City Project will be granted to the Association for
allocation as it deems desirable among owners of
improved lots within Developer ' s Site; and
(c) Design standards and restrictions
applicable to the! City Project.
8. Approval of Operating Guaranty.
Promptly after the execution of this Agreement, the
City and Developer shall meet and confer for the purpose of
negotiating in good faith all of the terms and conditions of
the Operating Guaranty. The Operating Guaranty shall
include, without limitation, the following:
(a) Developer ' s guaranty to pay to City, from
time to time, within thirty ( 30) days following written
request, those amounts by which ( i) the sum of all
operating expenses ( including, without limitation,
management fees and lease payments) , noncapitalized debt
service on the Bonds and on all other assessments and
special taxes, if any shown on the Title Policy upon
City's acquisition of the Golf Course Site which have
been paid by City to date (collectively the "Expenses" ) ,
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exceed ( ii) the sum of gross revenues from the City
Project actually received by the City to date ( "Gross
Revenues" ) and all amounts previously paid by Developer
to City under the Operating Guaranty. The Operating
Guaranty shall also provide for the City to reimburse
Developer those sums paid by Developer to City under the
Operating Guaranty, together with interest thereon at
the pay rate on the Bonds, from fifty percent ( 50% ) of
the "Positive Cash Flow" (as hereinafter defined) , if
any, thereafter received by the City from the City
Project . Such repayment shall occur on an annual basis,
within sixty ( 60 ) days following the end of any fiscal
year during which. Positive Cash Flow is received by the
City. The term "Positive Cash Flow" shall mean the
amount by which Gross Revenues exceeds Expenses during
the fiscal year then considered.
(b) Provide for Developer ' s delivery of an
irrevocable letter of credit issued by an institution in
an amount and on terms and in a form acceptable to City
and Developer and payable to City, on demand and
presentation of City' s written certification that
amounts are due .and owing to City under the Operating
Guaranty.
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(c) Provide for termination of the Operating
Guaranty and letter of credit securing same at the end
of the fifth ( 5th) year following commencement of
operation of the City Project .
9 . Approval of Declaration. Promptly after
execution of this Agreement, Developer shall prepare and
submit to City the proposed Declaration and Developer and
City shall meet and confer on the contents of the
Declaration.
10 . Approval of Golf Course Site. Promptly after
execution of this Agreement, the parties shall meet and
confer with the ad hoc committee organized by the City for
the City Project, for purposes of finalizing the size and
configuration of the Golf Course Site.
11 . Extension of Closing Date for Obtaining
Approvals .
Notwithstanding anything contained in this
Agreement to the contrary, and without limiting City' s
obligations hereunder, in the event Developer and City have
agreed upon the amount of the Purchase Price, Base Purchase
Price and Additional Purchase Price, but the form of the
Development Agreement , Construction Agreement, Management
Agreement, Operating Guaranty, Deed and Project Agreement and
all submissions of Developer are not approved by City by
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December 1, 1991 for any reason whatsoever, Developer shall
have the right to extend the Closing Date for a period up to
six ( 6) months . Any such extension shall be effectuated by
Developer by giving City written notice of such extension not
later than 60 days prior to the Closing Date.
12. Acceptance of Risk of Loss Following Failure
to Agree.
Developer has notified City that it has spent
substantial sums to date and, based upon the City' s execution
of this Agreement, intends to expend substantial additional
sums for preparation of engineering and improvement plans for
the Project. The parties acknowledge and agree that material
terms remain to be determined and negotiated in connection
with the parties ' approval of the Purchase Price, Base
Purchase Price and Additional Purchase Price, and proposed
form and content of the Deed, Construction Agreement,
Development Agreement, Management Agreement , Project
Agreement, Operating Guaranty and Letter of Credit. As
material consideration to City for its execution of this
Agreement, Developer covenants and agrees that if City and
Developer fail to agree upon the amount of the Purchase
Price, Additional Purchase Price or the content and form of
any agreement contemplated hereunder, or should any other
condition to the City' s obligations hereunder fail to occur ,
that Developer shall be solely responsible for all costs and
obligations incurred by Developer in connection with the
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Project; that in no event shall City have responsibility for
any of such costs or obligations and Developer hereby fully
releases City from any liability for payment of any such
costs and/or performance of any such obligations and agrees
to defend, indemnify and hold City harmless with respect
thereto. Notwithstanding the foregoing, should this
Agreement be terminated prior to Closing, for any reason, the
sums paid by Developer to City pursuant to Sections 404 . 1 and
404. 2, less the Approved Costs, shall be returned by City to
Developer .
G. ( § 407 ) Conditions to Closing; Rights of Term-
ination
1 . City ' s Conditions to Closing.
City ' s obligations hereunder to purchase the Golf
Course Site from Developer , and the closing of the escrow
described herein, shall, in addition to any other conditions
set forth herein in favor of City, be conditional and
contingent upon the satisfaction, or waiver by City, of each
and all of the following conditions precedent (collectively,
"City ' s Conditions to Closing" ) :
(a) Developer shall have entered into a
binding lease or easement on that portion of the Entire
Site described in Exhibit No. 2 prior to sixty ( 60) days
following execution of this Agreement. The failure of
this condition shall entitle the City, at its election
to terminate this Agreement or to suspend performance of
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its obligations under this Agreement until this
condition has been satisfied.
(b) City shall have authorized and issued the
Bonds and the Bonds shall have been sold upon terms and
at a coupon rate not greater than that used in the
Financial Projections. City makes no guarantee,
covenant, representation or warranty that the
underwriter will. be able to sell the Bonds as
authorized.
(c) Developer shall have deposited into escrow
all of the moneys, documents, fees, charges, costs and
items required to be deposited therein by it pursuant to
Section 408 herein and complied with all other
requirements of this Agreement and the escrow.
(d) Neither the Golf Course Site nor any real
property bordering the Golf Course Site shall be the
subject of any action or formal notice by any federal,
state or local governmental agency regulating Hazardous
Substances .
(e) There shall have occurred no change in
federal, state or local laws (other than of City) and
there shall exist no initiative or referendum which does
or would prevent: or impair development of the City
Project or the Golf Course Site.
(f) No litigation, cease and desist order ,
federal, state or governmental action (other than of
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City) shall exist or arise which does or seeks to
prevent or impair development of the City Project .
(g) City shall be reasonably satisfied that
development of the City Project will not violate or be
prevented by any federal, state or local law, ordinance,
rule or regulation (other than of City) pertaining to
the environment, endangered species or preservation of
habitat.
(h) Subject to the limitations recognized in
Section 406 .12 above, City shall have approved in its
sole discretion, the amount of the Purchase Price, Base
Purchase Price, Additional Purchase Price, and the form
of the Deed, Development Agreement, Declaration,
Construction Agreement, Management Agreement, Project
Agreement, Operating Guaranty and Letter of Credit .
( i ) City shall have approved the Tract Map,
General Plan Amendment, and creation of a PDD for the
Entire Site pursuant to those standards generally
applicable to the City in its review of these types of
discretionary approvals.
( j ) City shall have complied with all
procedural and substantive requirements pursuant to CEQA
and shall have filed Notices of Determination as
required under CEQA in connection with its approval of
the Development Agreement, PDD, Vesting Tentative Map,
General Plan Amendment, purchase of Golf Course Site and
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development of the City Project, and all applicable
statute of limitations periods under CEQA for the filing
of any administrative or judicial challenges to the
City' s exercises of discretion as listed in this
subsection of this Agreement as well as the applicable
referendum period therefor, shall have expired without
any such challenge being filed (or any such challenge
shall have been resolved in favor of the validity of
same) .
(k) City shall be reasonably satisfied that
sufficient utilities are available to service the City
Project.
( 1) There shall have accrued no material
adverse change in the condition of the Golf Course Site
or its soils prior to the close of Escrow, and no
information shall have become known which would
materially adversely affect the Golf Course Site for the
use and operation of the golf course and related
facilities.
(m) No ,proceeding in eminent domain shall be
pending or threatened by any federal, state or local
governmental agency (other than of City) with respect to
the Golf Course Site or any portion thereof .
(n) The Tract Map shall have been recorded and
Developer shall have satisfied all of the conditions of
approval to the recordation of the Tract Map.
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(o) Developer shall have acquired the
Acquisition Property as contemplated by the Acquisition
Agreements and this Agreement prior to or concurrently
with the Closing hereunder .
2 . Failure of City' s Conditions ; Termination.
In the event any of City' s Conditions to Closing
are not satisfied or waived by City prior to the Closing
Date, City may at its option terminate this Agreement by
delivering written notice to "Escrow Agent" (with a copy to
Developer) and demanding the return of its money, papers, or
documents; provided, however, that if such unsatisfied
condition constitutes a failure of the condition specified in
clause (c) above, City may not terminate this Agreement as
aforesaid unless it has given Developer a notice of such
failure pursuant to Election 701 and until expiration of ten
(10 ) business days without such condition being satisfied by
Developer . No termination or demand for return shall be
recognized by Escrow Agent until expiration of such time
period without such condition being satisfied by Developer .
If Developer raises any objection within the ten ( 10) day
period, Escrow Agent .is authorized to hold all money, papers ,
and documents until .instructed in writing by both City and
Developer or, upon failure thereof, by a court of competent
jurisdiction. If City does not terminate prior to the
Closing Date, the escrow shall be closed as soon as possible.
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In the event City terminates this Agreement under this
Section 407 .2 or Developer terminates this Agreement under
Section 407 .4 below, City shall return to Developer the
$200,000 .00 installment on the Senca Advance, less the
Approved Costs, and shall thereafter have no further
liability to Developer .
3. Developer ' s Conditions to Closing.
Developer ' s obligation to sell the Golf Course Site
to City, and the closing of such escrow, shall, in addition
to any other conditions set forth herein in favor of
Developer, be conditional and contingent upon the
satisfaction, or waiver by Developer, of each and all of the
following conditions precedent (collectively, "Developer ' s
Conditions to Closing" ) :
(a) Each Seller shall have performed all of
its material obligations under the Acquisition
Agreements.
(b) City shall have authorized and issued the
Bonds.
(c) The Development Agreement shall have been
approved and published by local ordinance and executed
by Developer and the City, and the time period for any
challenge thereof shall have expired without any
challenge being filed (or any such challenge shall have
been resolved in favor of the validity of the
Development Agreement) .
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(d) Developer shall have approved the amount
of the Purchase Price, Base Purchase Price, Additional
Purchase Price and the form of the Deed, Project
Agreement, Declaration, Development Agreement,
Construction Agreement, Management Agreement, Operating
Guaranty and Letter of Credit .
(e) The Tract Map for the Entire Site shall
have been recorded, the General Plan Amendment shall
have been approved, and the PDD for the Entire Site
shall have been created.
( f) City shall have deposited into escrow all
of the moneys, documents, fees, charges, costs, and
items required to be deposited therein by it pursuant to
Section 408 herein, and otherwise complied with all
requirements of this Agreement and the escrow.
4. Failure of Developer ' s Conditions to Closing-,
Termination.
In the event any of Developer ' s Conditions to
Closing are not satisfied or waived by Developer prior to the
Closing Date, Developer may at its option terminate this
Agreement by delivering written notice to Escrow Agent (with
a copy to City) and demanding the return of its money,
papers, or documents. No termination or demand shall be
recognized by the Escrow Agent until ten ( 10 ) business days
after it shall have mailed copies of such demand to City. If
City raises any objection within the ten (10 ) day period,
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Escrow Agent is authorized to hold all money, papers, and
documents until instructed in writing by both City and
Developer or, upon failure thereof, by a court of competent
jurisdiction. Provided, however, that if such unsatisfied
condition constitutes a failure of the conditions specified
in Section 407.3(f) above, Developer may not terminate this
Agreement as aforesaid unless it has given City a notice of
such failure pursuant to Section 701 and until expiration of
ten ( 10) business days without such condition being satisfied
by City. If Developer does not terminate prior to the
Closing Date and makes no such demands, the escrow shall be
closed as soon as possible.
H. (§ 408) Escrow.
1. Opening of Escrow.
At least ten (10 ) days prior to the Closing Date,
City and Developer shall cause an escrow or escrows
( "Escrow" ) to be opened with Title Company or such other
escrow agent as may be mutually approved by the parties
( "Escrow Agent" ) for the conveyance of the Golf Course Site
to City. Such Escrow shall, at Developer ' s election, be
structured as a "double-escrow" so as to coordinate with the
escrow for Developer ' s acquisition of the Acquisition
Property. This Agreement shall constitute the joint escrow
instructions of City and Developer for such Escrow, and a
duplicate original of this Agreement shall be delivered to
Escrow Agent upon the opening of Escrow. Escrow Agent is
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hereby empowered to act under this Agreement, and upon
indicating its acceptance of this Section 408 in writing,
delivered to City anti Developer within five days after the
opening of Escrow, shall carry out its duties as Escrow Agent
hereunder . City and Developer shall promptly prepare,
execute, and deliver to the Escrow Agent such additional
escrow instructions consistent with the terms of this
Agreement as shall be reasonably necessary to carry out the
purposes and intent of this Agreement, including but not
limited to Escrow Agent ' s standard and customary
instructions; provided, however, that in the event of any
conflict between Escrow Agent ' s standard instructions and
this Agreement , the provisions of this Agreement shall
prevail.
2. Close of Escrow.
The sale and purchase herein provided shall be
consummated through Escrow on the Closing Date. As used
herein, the "Closing Date" and the "Close of Escrow" means
the date Escrow closes and the Deed is recorded in the
official records of Riverside County, California, which date
shall be no later than December 1, 1991, or such other date
as may be agreed upon by City and Developer for the Close of
Escrow or as otherwise provided in this Agreement.
3. Deliveries.
City and Developer shall deliver to Escrow Agent
all documents necessary for the conveyance of title to the
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Golf Course Site within the time and in the manner provided
in this Agreement, and in any event no later than three
business days prior to the scheduled Close of Escrow.
(a) Deliveries by Developer . Developer
shall timely and properly execute, acknowledge and
deliver into Escrow ( i ) a duly executed and acknowledged
original Deed conveying the Golf Course Site to City,
subject only to the Permitted Exceptions and other Title
Documents approved by City; ( ii ) the Declaration; ( iii )
a certificate respecting the "non-foreign" status of
Developer sufficient to determine that no withholding is
required pursuant: to IRC Section 1445 and a certificate
declaring California residency sufficient to determine
that no withholding is required under California Revenue
& Taxation Code Section 18805, et sect. ; ( iv) two ( 2 )
sets each of the fully executed Development Agreement ,
Project Agreement,, Construction Agreement and Operating
Guaranty; (v) the Letter of Credit; (vi) Developer ' s
written approval of the Management Agreement; and (vii )
the unpaid balance of the Senca Advance ( $185, 000 . 00 )
which shall have been paid by Developer to City before
the Close of Escrow or credited to City and charged to
Developer at Close of Escrow.
(b) Deliveries by City. City shall further
timely and properly deliver into Escrow the Base
Purchase Price on or before one ( 1) day prior to the
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Closing Date, and shall timely and properly execute,
acknowledge and deliver into Escrow two ( 2) sets of the
fully executed Development Agreement, Project Agreement,
Construction Agreement, Management Agreement ( in the
form approved by Developer and signed by the operator )
and the Operating Guaranty.
4 . Payment: of Costs.
Developer and City shall each pay into Escrow the
following fees, charges and costs after Escrow Agent has
notified each party of the amount thereof, but not earlier
than five days prior to the scheduled date for the Close of
Escrow:
(a) Developer shall pay:
( i ) one-half (1/2) of all escrow fees
for the transfer of the Golf Course Site from
Developer to City pursuant to this Agreement;
( ii ) that portion of the premiums for the
Title Policy chargeable for CLTA policy coverage;
( iii ) all documentary, transfer and
intangible taxes payable in connection with the
delivery, recordation or filing of any instrument
or document provided herein to be delivered,
recorded or filed; and
( iv) recording or filing fees for the
Development Agreement, the Tract Map, the
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Declaration, and any other document filed or
recorded at the request of Developer .
(b) City shall pay:
( i) one-half ( 1/2) of all escrow fees
for the transfer of the Golf Course Site from
Developer to City pursuant to this Agreement;
( ii.) all recording or filing charges for
the Deed and any other document filed or recorded
at the request of City; and
( iii.) that portion of the premium for the
Title Policy equal to the difference between the
premium for a CLTA policy and the ALTA policy and
the cost of: any indorsements requested by City,
other than a mechanic' s lien indorsement which
shall be paid for by Developer .
Each party shall be further responsible hereunder
for depositing into Escrow each party ' s share of
prorations on all documents , fees, charges and items
related to the closing of the transaction contemplated
by this Agreement prior to the recordation of the
documents as herein set forth.
5 . Recording and Delivery Instructions .
Upon Close of Escrow, Escrow Agent is authorized
and directed to take the following actions in the following
order:
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( i ) Record first the Deed, then the
Declaration, Project Agreement and lastly the
Development Agreement in the official records of
Riverside County and deliver conformed copies
thereof to City and Developer . Escrow Agent shall
buy, affix and cancel any documentary stamps
required by law, as provided herein. Any liability
or casualty insurance policies governing the Golf
Course Site shall not be transferred to City;
( ii ) Deliver the Base Purchase Price to
Developer, as adjusted by the prorations and
credits specified herein. In this regard, Escrow
Agent shall pay and charge City and Developer,
respectively, for any fees, charges and costs
payable under this Section 408. Before such
payments are? made, Escrow Agent shall notify City
and Developer of the fees, charges and costs
necessary to clear and convey title and Close the
Escrow;
( iii ) Deliver to City the Letter of Credit, one
fully executed Development Agreement, Construction
Agreement, Project Agreement, the Operating
Guaranty, the Title Policy, and any other documents
to which the City is entitled, when the conditions
of this Escrow have been fulfilled by City and
Developer; and
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( iv) Deliver to Developer one Development
Agreement, Construction Agreement, Project
Agreement, the Operating Guaranty, and any other
documents to which Developer is entitled when the
conditions of this escrow have been fulfilled.
6 . Interesst Bearing Accounts.
Any funds received in the Escrow shall be deposited
by Escrow Agent in a :separate interest-bearing escrow account
or accounts with any state or national bank approved by -the
parties and doing business in the State of California. Such
funds may not be transferred to or commingled with any other
account or accounts. Interest earned on the funds in said
account(s) shall be allocated, credited, and paid (at the
closing or termination) to the party who deposited the
principal upon which the interest was earned. All
disbursements shall be made on the basis of a 30-day month.
7 . Miscellaneous .
Any amendment of these Escrow instructions shall be
in writing and signed by both City and Developer . At the
time of any amendment, Escrow Agent shall agree to carry out
its duties as Escrow Agent under such amendment.
All communications from Escrow Agent to City or
Developer shall be directed to the addresses and in the
manner established in Section 701 of this Agreement for
notices, demands and communications between City and
Developer .
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The liability of Escrow Agent under this Agreement
is limited to performance of the obligations imposed upon it
under Sections 405 to 409, inclusive, of this Agreement .
I . 409) Conveyance of Title and Delivery of
Possession; Proration of Taxes and
Assessments .
Subject to any mutually agreed upon extensions of time,
or extensions of time provided for in Section 408, conveyance
of the Golf Course Site to City ( in the condition provided in
Section 405 of this Agreement ) shall be completed on or prior
to the Closing Date. Subject to the other terms and
conditions set forth herein, City and Developer agree to
perform all acts reasonably necessary to convey title in
sufficient time in accordance with the foregoing provisions .
Possession of the Golf Course Site shall be delivered to
City concurrently with the conveyance of title, subject to
Developer ' s right to re-enter to complete development and
construction of the City Project in accordance with the
Construction Agreement.
Ad valorem taxes on the Golf Course Site levied,
assessed, or imposed as to any period prior to conveyance of
title or delivery of possession and all assessments on the
Golf Course Site shall be borne by Developer . All ad valorem
taxes on the Golf Course Site levied or imposed for any
period after such conveyance of title or delivery of
possession shall be paid by the City. In no event shall the
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Developer be charged with or be responsible for any increase
in the taxes on the Golf Course Site resulting from the sale
of the Golf Course Site to the City or from any improvements
made or leases entered into on or after the Closing Date.
Current taxes shall be prorated between Developer and City as
of the Closing Date.
The prorations and payments shall be made on the basis
of a written statement submitted to City by Developer prior
to the Closing Date and approved by City. In the event any
prorations or apportionments made under this subparagraph
shall prove to be incorrect for any reason, then any party
shall be entitled to an adjustment to correct the same. Any
item which cannot be finally prorated because of the
unavailability of information shall be tentatively prorated
on the basis of the best data then available and reprorated
when the information is available.
J. ( § 410) Representations and Warranties by
Developer .
1. Disclaimer .
Except for the representations and warranties made
by Developer in this Agreement, the sale of the Golf Course
Site hereunder is and will be made on an "as is" basis
without representations or warranties of any kind or nature,
express, implied or otherwise, including, but not limited to,
any representation or warranty concerning the title to, or
physical or financial condition of, the Golf Course Site or
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of any income, expenses, charges , liens, encumbrances, rights
or claims on or affecting or pertaining to the Golf Course
Site or any part thereof. City acknowledges that upon
execution of the Construction Agreement, it shall have
completed all physical and financial investigations or
examinations relating to the acquisition of the Golf Course
Site hereunder and will acquire the same solely on the basis
of such investigations and examinations , the guarantees in
the Construction Agreement and Operating Guaranty and the
title insurance protection afforded by the Title Policy.
Without limitation on the foregoing, City has reviewed (a)
that certain ALTA survey of the Golf Course Site, dated June
15, 1990, prepared by Mainiero, Smith and Associates; and (b)
that certain Preliminary Geotechnical Investigation, Proposed
Palm Springs Classic Site, Southeast of Vista Chino and Gene
Autry Trail, City of Palm Springs, California, dated November
21, 1990 , prepared by Leighton and Associates; and (c) that
certain report on Hazardous Substances covering the Entire
Site, entitled "Historical Review and Site Reconnaissance to
Assess the Potential for Onsite Hazardous Materials/Waste
Contamination on Approximately 256 Acres of Land Located
Between Gene Autry Trail and The White Water River Channel,
Palm Springs, Riverside County, California, Project No.
5890413-01, dated May 2, 1989 , prepared by Leighton and
Associates, Inc. , and Addendum Report dated December 4 , 1990"
( "Hazardous Report" ) .
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2 . Representations and Warranties by Developer .
Developer hereby makes the following representations and
warranties to City, each of which ( i) is material and relied
upon by City in making its determination to enter into this
Agreement; ( ii ) is true in all respects as of the date hereof
and shall be true in all respects on the Closing Date; and
( iii) shall survive the Close of Escrow of the purchase of
the Golf Course Site as well as any future transfer of the
Golf Course Site:
(a) No agreements have been entered into by or
under Developer which affect the Golf Course Site and
will survive the Close of Escrow.
(b) There are no filed and served (and, to the
best of Developer ' s knowledge, no pending or threatened)
litigation, allegations, lawsuits, administrative pro-
ceedings or claims against Developer, which do or may
affect the Entire Site or the City Project or
Developer ' s Project, and there are no actions or
proceedings filed and served on Developer, or to the
best of Developer ' s knowledge, pending or threatened
against Developer before any court or administrative
agency which would affect Developer ' s ability to fulfill
all of its obligations under this Agreement, the
Development Agreement, the Construction Agreement, the
Project Agreement, the Operating Guaranty or the Letter
of Credit.
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(c) To the best of Developer ' s knowledge, there
exists no soil or other related problems which would
render the Golf Course Site unsuitable for the
development and operation of a first class championship
golf course of the type presently being contemplated,
except for those described in soils reports previously
provided by Developer to City.
(d) Developer has no knowledge of any information
which would materially affect the Entire Site or the
development of the City Project or Developer ' s Project
which is not contained in those reports listed in
clauses (a) , (b) and ( c) of Section 410 . 1 above or
otherwise disclosed to City in writing.
(e) After due and diligent inquiry and
investigation by Developer to the extent described in
the Hazardous Report , there exists no Hazardous
Substances (as :such term is hereinafter defined) nor
underground storage tanks or pipelines on, under or
about the Entire Site, and there has been no use,
generation, storage, transportation, release, disposal,
discharge or threatened release of any Hazardous
Substances on, under or about the Entire Site and Seller
has received no notice from any third parties or any
governmental entity or agency indicating that there has
been any discharge, disposal, release, use, storage,
generation, transportation or threatened release of any
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Hazardous Substances on, under or about the Entire Site
or that any Hazardous Substance remedial or cleanup work
is required with respect to the Entire Site. To the
best of Developer ' s knowledge, there has been no
discharge, disposal or release of any Hazardous
Substances on property adjoining or in the immediate
vicinity of the Entire Site.
3 . Indemn.ification Re: Hazardous Substances .
Developer shall, from and after the Closing Date, indemnify,
defend and hold harmless City and the City council members ,
and the officers, employees , agents and representatives of
City, and their successors and assigns (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, damages, demands or other liabilities resulting
at any time from the environmental conditions of the Entire
Site whether before or after the Closing Date or from the
existence or introduction of any Hazardous Substance or the
release or threatened release of any Hazardous Substance on,
under or about the Entire Site occurring at any time prior to
completion of all of Developer ' s obligations under the
Construction Agreement, including but not limited to all
unforeseeable, actual. or consequential damages and all
attorneys ' fees, environmental consultant fees and expert
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witness fees directly or indirectly arising therefrom and
further including fines and penalties of any nature
whatsoever assessed, levied or asserted against any of the
Indemnified Parties to the extent that such fines or
penalties are the result of a violation or alleged violation
of any Environmental Law. Notwithstanding any other
provision of this Agreement, Developer ' s representation and
warranty and indemnification as set forth in the provisions
of this Section 410 and the other provisions of this Section
shall survive the Close of Escrow and shall continue
permanently.
4 . Definit:ions. For purposes of this Section
410 , the following terms shall have the following meanings :
(a) "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, employee, former employee, or their respective
legal representatives, heirs, beneficiaries and estates,
relating to the Golf Course Site or its operation and
arising or alleged to arise under any Environmental Law.
(b) "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 Substance from or on any
part of the Golf Course Site, including, without limita-
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tion, ( i ) any direct costs or expenses for
investigation, study, assessment, legal representation,
cost recovery by governmental agencies, or on-going
monitoring in connection therewith and ( ii) any cost,
expense, loss or damage incurred with respect to the
Golf Course Site or its operation as a result of actions
or measures necessary to implement or effectuate any
such containment, removal, remediation, treatment,
cleanup or abatement.
(c) "Environmental Compliance Cost" means any cost
or expense of any nature whatsoever necessary to enable
the Golf Course Site to comply with all applicable
Environmental Laws in effect. "Environmental Compliance
Cost" shall include all costs necessary to demonstrate
that the Golf Course Site is capable of such compliance.
(d) "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 ( i ) pollution or
protection of the environment, including natural resour-
ces, ( ii) exposure of persons , including employees, to
Hazardous Substances or other products , raw materials,
chemicals or other substances, ( iii ) protection of the
public health or welfare from the effects of by-
products, wastes, emissions , discharges or releases of
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chemical substances from industrial or commercial
activities, or ( iv) regulation of the manufacture, use
or introduction into commerce of chemical substances,
including, without limitation, their manufacture, formu-
lation, labeling, distribution, transportation, handl-
ing, storage and disposal .
(e) "Hazardous Substance" 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 Substance" includes,
without limitation, any material or substance which is :
( i) petroleum or oil or gas or any direct or derivate
product or byproduct thereof; ( ii ) 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 Haste Control Law) ; ( iii ) 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 ) ; ( iv) defined as a "hazardous material, "
"hazardous substance, " or "hazardous waste" under
Sections 25501( j ) and (k) and 25501. 1 of the California
Health and Safety Code, Division 20 , Chapter 6 . 95
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(Hazardous Substances Release Response Plans and
Inventory) ; (v) 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) ; (vi ) "used oil" as defined under
Section 25250 . 1 of the California Health and Safety
Code; (vii ) asbestos; (viii ) listed under Article 9 or
defined as hazardous or extremely hazardous pursuant to
Article 1 of Title 22 of the California Code of
Regulations, Division 4, Chapter 30; ( ix) defined as
waste or a hazardous substance pursuant to the Porter-
Cologne Act, Section 13050 of the California Water Code;
(x) designated as a "toxic pollutant" pursuant to the
Federal Water Pollution Control Act , 33 U. S.C. § 1317;
(xi) defined as a "hazardous waste" pursuant to the
Federal Resource Conservation and Recovery Act, 42
U. S.C. § 6901 et sec . ( 42 U. S.C. § 6903) ; (xii) defined
as a "hazardous substance" pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act,
42 U. S.C. § 9601 et sea. ( 42 U.S.C. § 9601) ; (xiii )
defined as "Hazardous Substance" pursuant to the
Hazardous Substances Transportation Act , 49 U.S.C.
§ 1801 et sec . ; or (xiv) 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
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to, or imposing liability or standards of conduct
concerning Hazardous Substances and/or oil wells and/or
underground storage tanks and/or pipelines, as now, or
at any time hereafter , in effect.
J. ( § 411) Indemnification.
1. 3V City. City shall hold harmless , indemnify
and defend Developer from and against : (a) any and all
third-party claims for City ' s torts or breaches of contract
related to the Golf Course Site and occurring on or after
Close of Escrow, except as otherwise provided in the
Construction and Management Agreements; (b) any and all loss,
damage or third-party claims in any way arising from the
City' s inspections or examinations of the Golf Course Site
prior to Close of Escrow, except for any loss, damage or
third party claims caused by Developer; (c) any and all loss,
damage or third-party claims in any way arising from the
presence, release, discharge, burial or disposal of any
Hazardous Substances first introduced to the Golf Course Site
after Developer ' s completion of all of its obligations under
the Construction Agreement and (d) all costs and expenses,
including reasonable attorneys ' fees, incurred by Developer
as a result of the foregoing.
2 . By Developer . Developer shall hold harmless ,
indemnify and defend City from and against: (a) any and all
third-party claims for the Developer ' s alleged torts or
breaches of contract, breach of warranty or misrepresentation
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to such third party relating to the Golf Course Site and
occurring prior to the Close of Escrow, (b) any and all loss,
damage or third-party claims in any way arising from the
presence, release, discharge, burial or disposal of any
Hazardous Substances on or under the Golf Course Site any
time prior to completion of the Golf Course Project, or on or
under the Developer Site; (c) any and all claims, actions,
demands or liabilities arising from or related to any breach
of any warranty or representation of Developer made in this
Agreement; and (d) all costs and expenses , including
reasonable attorneys ' fees , incurred by the City as a result
of the foregoing. The foregoing indemnity shall not cover
any matters relating to title or marketability of the Golf
Course Site (City relying on the coverage provided by the
Title Policy as to such matters . )
3. Generally. Each indemnification under this
Agreement shall be subject to the following provisions: The
indemnitee shall notify indemnitor of any such claim against
indemnitee within thirty ( 30 ) days after it has notice of
such claim, but failure to notify indemnitor shall in no case
prejudice the rights of indemnitee under this Agreement
unless indemnitor shall be prejudiced by such failure and
then only to the extent of such prejudice. Should indemnitor
fail to discharge or undertake to defend indemnitee against
such liability within ten ( 10 ) days after the indemnitee
gives the indemnitor written notice of the same, then
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indemnitee may settle such liability, and indemnitor ' s
liability to indemnitee shall be conclusively established by
such settlement, the amount of such liability to include both
the settlement consideration and the reasonable costs and
expenses, including attorneys ' fees, incurred by indemnitee
in effecting such settlement . The indemnitee shall have the
right to approve the attorneys to be retained by indemnitor
to defend indemnitee .
V. ( § 500 ) DEVELOPMENT AND USE OF GOLF COURSE SITE.
Following the Closing Date, the Golf Course Site shall
be constructed and developed substantially in accordance with
the Construction Agreement and used and operated
substantially in accordance with the restrictions contained
in the Deed.
VI . ( § 600 ) DEFAULTS, REMEDIES AND TERMINATION.
A. ( § 601) Defaults -- General .
Subject to the extension of time set forth in
Section 703 , failure or delay by any party to perform any
term or provision of this Agreement constitutes a default
under this Agreement; except for the specific times and
procedures provided in this Agreement, however , if the party
who so fails or delays commences to cure, correct or remedy
such failure or delay' within thirty ( 30 ) days after receipt
of a notice specifying such failure or delay, and shall
diligently prosecute such cure, correction or remedy to
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completion, then such party shall not be deemed to be in
default .
The injured party shall give written notice of
default to the party in default, specifying the default
complained of by the injured party. Except as required to
protect against further damages, the injured party may not
institute proceedings against the party in default until
thirty ( 30) days after giving such notice. Failure or delay
in giving such notice shall not constitute a waiver of any
default, nor shall it change the time of default.
Except as otherwise expressly provided in this
Agreement, any failure or delay by any party in asserting any
of its rights or remedies as to any default shall not operate
as a waiver of any default or of any rights or remedies or
deprive such party of its right to institute and maintain any
actions or proceedings which it may deem necessary to
protect , assert or enforce any such rights or remedies.
S. ( § 602) Legal Actions.
1. Institution of Legal Actions.
Legal actions must be instituted in the Superior
Court of the County of Riverside, State of California, in any
other appropriate court in that county, or in the Federal
District Court for the Southern District of California.
2. Applicable Law.
The laws of the State of California shall govern
the interpretation and enforcement of this Agreement .
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3 . Acceoi:ance of Service of Process .
In the event that any legal action is commenced by
Developer against City, service of process on City shall be
made by personal service upon the City Manager or City
Attorney of City, or in such other manner as may be provided
by law.
In the event that any legal action is commenced by City
against Developer, service of process on Developer shall be
made in such manner as may be provided by law and shall be
valid whether made within or without the State of California.
Developer hereby designates Michael J. Narvid, Esq. , of
Narvid, Glickman, Harrison & Scott, 15060 Ventura Boulevard,
Sherman Oaks, California 91403, as its agent for service of
process , provided, however, service on said agent shall not
be effective unless Developer is provided notice of such
service in accordance with Section 701 hereof within forty-
eight ( 48) hours of service on said agent. Developer may
from time to time designate other agents for service in lieu
of the agent above specified.
C. ( § 603) Rights and Remedies are Cumulative.
Except as otherwise expressly stated in this
Agreement , the rights and remedies of the parties are
cumulative, and the exercise by any party of one or more of
its rights or remedies shall not preclude the exercise by it,
at the same or different times, of any other rights or
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remedies for the same default or any other default by another
party.
D. ( § 604) Damages.
If City or Developer defaults with regard to any of
the provisions of this Agreement, the defaulting party shall
be liable to the other party for any damages caused by such
default, except as otherwise expressly provided herein.
E. ( § 605) Specific Performance.
If City or Developer defaults under any of the
provisions of this Agreement, the non-defaulting party may
institute an action for specific performance of the terms of
this Agreement, except as otherwise expressly provided
herein. Notwithstanding the foregoing, neither City nor
Developer shall have a right to specific performance of any
of the other party ' s obligations under this Agreement prior
to the date specified for the Close of Escrow in Section 406
hereof .
F. ( § 606) Attorneys ' Fees .
In the event of any action or proceeding by and between
any of the parties arising out of or relating to the
interpretation or enforcement of this Agreement, the
prevailing party shall be entitled to recover its reasonable
attorneys ' fees and litigation expenses, including expert
witness fees , incurred in addition to whatever relief to
which it may be entitled.
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VII . ( §700 ) GENERAL PROVISIONS
A. ( §701) Notices, Demands and Communications
Between the Parties .
Formal notices, demands and communications between City
and Developer shall be given either by personal service or by
mailing in the United States mail, certified mail, postage
prepaid, return receipt requested, or by reputable overnight
courier or delivery service addressed to City or Developer as
set forth in Sections 301 and 302 hereof. Copies of all
notices to Developer shall be delivered to the attention of
Stephen J. Mitchell, Esq. ; with a copy to Narvid, Glickman,
Harrison & Scott, 15060 Ventura Boulevard, Suite 490 , Sherman
Oaks, California 91403 , Attention: Michael J. Narvid, Esq.
All notices to City shall be provided to the attention of the
City Manager ; with a copy to Rutan & Tucker , 611 Anton
Boulevard, Suite 1400, Costa Mesa, California 90628-1950,
Attention; David J. Aleshire. Any such notice shall be
deemed to have been given upon receipt or upon the date
receipt at the proper address is denied, as shown on the
records of the U.S. Postal Service or independent courier .
Such written notices, demands and communications may be sent
in the same manner to such other addresses as a party may
from time to time designate by mail .
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B. ( § 702 ) Nonliability of City Officials and
Employees ; Conflicts of Interest •
Exculpation from Liability of Agents of
Developer .
No member , official, employee, agent or contractor of
the City shall be personally liable to Developer in the event
of any default or breach by City or for any amount which may
become due to Developer or on any obligations under the terms
of this Agreement ; provided, it is understood that nothing in
this Section 702 is intended to limit City' s liability.
No member, official, employee or agent of the City shall
have any direct or indirect interest in this Agreement nor
participate in any decision relating to this Agreement which
is prohibited by law.
No advisor, trustee, director, officer , employee,
beneficiary, shareholder, participant or agent of or in
Developer shall have any personal liability, directly or
indirectly, under or :in connection with this Agreement or any
agreement made or entered into under or pursuant to the
provisions of this Agreement, or any amendment or amendments
to any of the foregoing made at any time or times, heretofore
or hereafter, and City and its successors and assigns and,
without limitation, all other persons and entities claiming
by or through the City, shall look solely to Developer ' s
assets for the payment of any claim or for any performance,
and City hereby waives any and all such personal liability,
providing that nothing contained in this Section 702 is
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intended to limit the liability of Developer or its general
partners .
C. ( § 703) Enforced Delay; Extension of Times of
Performance.
In addition to specific provisions of this Agreement,
performance by the parties hereunder shall not be deemed to
be in default where delays or defaults are due to war;
insurrection; strikes ; lock-outs; riots; floods; earthquakes ;
fires ; _casualties ; acts of the public enemy; epidemics;
quarantine restrictions; freight embargoes; lack of
transportation; governmental restrictions or priority;
litigation; severe weather ; inability to secure necessary
labor , materials or tools; delays of any contractor,
subcontractor or supplier; acts of another party; acts or the
failure to act of a public or governmental agency or entity
(except that acts or the failure to act of City or any City
agency or entity shall not excuse performance by City) ; or
any other causes beyond the control of the party claiming an
extension of time to perform. In the event of such a delay,
the party delayed shall continue to exercise reasonable
diligence to minimize the period of the enforced delay. Such
period of enforced delay shall commence to run from the time
of the commencement of the cause, if notice by the party
claiming such extension is sent to the other party within
thirty ( 30) days of the commencement of the cause.
Notwithstanding anything contained in this Agreement to the
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contrary, however, either party may terminate this Agreement
in the event the period of any excusable delay under this
Section 703 exceeds twenty ( 20) days .
Times of performance under this Agreement may also be
extended by mutual written agreement by City and Developer .
D. ( § 704) Assignment ; Successors and Assigns .
1 . Restrictions on Transfer . Neither party shall
assign or transfer its rights or obligations under this
Agreement without the prior written consent of the other
party ( in which event such transferee shall assume in writing
all of the transferror ' s obligations hereunder, but such
transferror shall not be released from its obligations
hereunder) . No consent given by one party to any transfer or
assignment of the other party' s rights or obligations
hereunder shall be construed as a consent to any other
transfer or assignment of the other party' s rights or
obligations hereunder . No transfer or assignment in
violation of the provisions hereof shall be valid or
enforceable. Subject to the foregoing, this Agreement and
the terms and provisions hereof shall inure to the benefit of
and be binding upon the successors and assigns of the
parties . Notwithstanding any of the foregoing to the
contrary, City hereby approves the right of Developer to
hereafter assign its rights and obligations under this
Agreement to a limited partnership comprised substantially of
the partners of Developer ; provided that Developer , the
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general partners of Developer and the general partners of
such general partners shall not be released of any obligation
or liability under this Agreement, including, without
limitation, any liability for any breach by such assignee.
2 . Definition of Transfer. As used in this
Section 704, the term "transfer" shall include any
assignment, hypothecation, mortgage, pledge, conveyance, or
encumbrance of this Agreement or, in the case of Developer ,
any of its rights in and to the Developer Property or the
Acquisition Agreements, and shall also include the transfer
of more than twenty five percent (250 ) ( in the aggregate) of
the present ownership and/or control of any of the entities
constituting Developer or its general partners, or the
general partners of such general partners, taking all
transfers into account on a cumulative basis, except
transfers of such ownership or control interest between the
partners of the Developer, spouses or transfers to a trust ,
testamentary or otherwise, in which the beneficiaries are
limited to the transferor and/or the transferor ' s spouse. In
the event any entity constituting Developer or its general
partners or the general partners of such general partners , or
their successors is a corporation or trust, such transfer
shall refer to the transfer of more than twenty five percent
( 250 ) ( in the aggregate) of the issued and outstanding
capital stock of such corporation, or of the beneficial
interest of such truss: .
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E. ( § 705) Interpretation.
The terms of this Agreement shall be construed in
accordance with the plain meaning of the language used and
shall not be construed for or against either party by reason
of the authorship of this Agreement . The Section headings
are for purposes of convenience only, and shall not be
construed to limit or extend the meaning of this Agreement.
F. ( § 706 ) Entire Agreement ; Waivers and Amendments .
This Agreement integrates all of the terms and
conditions mentioned herein, or incidental hereto, and this
Agreement supersedes all negotiations or previous agreements
between the parties with respect to all or any part of the
subject matter hereof .
All waivers of the provisions of this Agree-
ment shall be valid and effective only if in writing and
signed by the appropriate authorities of City or Developer ,
as applicable, and amendments hereto shall be valid and
effective only if in writing and signed by the appropriate
authorities of City and Developer.
G. ( § 707 ) Consent ; Reasonableness . Except with
respect to the consent required pursuant to Section 704, in
the event that City or Developer shall require the consent or
approval of the other party in fulfilling any agreement,
covenant, provision or condition contained in this Agreement ,
such consent or approval shall not be unreasonably withheld
or delayed by the party from whom such consent or approval is
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sought , and shall be given or disapproved within the times
set forth herein, or, if no time is given, within a
reasonable time. Any disapproval shall state in writing
the reasons for such disapproval .
H. ( § 708) Real Estate Commissions .
Neither City nor Developer shall be liable for any real
estate commission, brokerage fees or finders ' fees which may
arise from this Agreement . Each party hereby represents
and warrants to the other that it has engaged no broker,
agent , or finder in connection with this Agreement, and shall
indemnify and hold the other party harmless from any loss ,
cost or expense ( including reasonable attorneys ' fees )
resulting from a breach of such representation and warranty.
I . ( § 709) Time of Essence: Calculation of Time.
Time is of the essence in this Agreement. All
obligations of City and Developer to each other shall be due
at the date specified, by this Agreement, as the same may be
extended by mutual agreement of the parties in writing. All
periods of time referred to herein shall include Saturdays,
Sundays, and legal holidays in the State of California,
except that if the last day of any period falls on any
Saturday, Sunday or such holiday, the period shall be
extended to include the next day which is not a Saturday,
Sunday or such a holiday.
-73-
•
J. ( § 710) Severability.
If any clause, sentence or any other portion of the
terms and conditions of this Agreement becomes illegal, void
or unenforceable for any reason, or is held by any court of
competent jurisdiction to be so, the remaining portion will
remain in full force and effect, provided the resulting
agreement preserves the material economic effect of this
Agreement .
K. ( § 711) No Partnership.
Neither anything contained in this Agreement nor any
acts of the parties hereto shall be deemed or construed by
the parties hereto, or any of them, or by any third person,
to create the relationship of principal and agent, or of
partnership, or of joint venture, or of any association
between any of the parties to this Agreement.
L. ( § 712 ) Non-Waiver of Governmental Rights .
Subject to the terms and conditions of this Agreement
and the Development and Management Agreements, City is in no
way obligating itself or any other City agency with respect
to any discretionary action relating to the acquisition,
development or operation of the Golf Course Site, including,
but not limited to, the authorization of the Bonds,
condemnation, rezoning, variances, environmental clearances
or any other governmental agency approvals which are or may
be required. City agrees, however, to cause formal
proceedings with respect to City ' s discretionary actions
-74-
0 o
within the time limits set forth herein, or if no time limit
is set forth herein for any such approval, then within a
reasonable time, and to diligently pursue such formal
proceedings until completion, subject however to statutory
requirements for length of notice and time of hearing or
appeal.
M. ( § 713 ) Execution.
This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, and such
counterparts shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.
PALM SPRINGS INTER-CONTINENTAL GULF
CENTER JOINT VENTURE,
a California general partnership
By: D.T. PALM SPRINGS INTER-CONTINENTAL
GOLF CENTERS ENTERPRISES, LTD. ,
a California limited partnership
By: D.T. PALM SPRINGS INTER-
CONTINENTAL GOLF CENTER, INC. ,
a Florida corporation,
Its Gener j r/;t�ier_�;
-'Stephen J. Mitchell
Its Vice President
By: PALM SPRINGS INTER-CONTINENTAL GOLF
CENTER ASSOCIATES, a California
general partnership
[Signatures continued on next page]
-75-
• o
By: S.G. DEVELOPMENT CORPORATION,
a Michigan corporation,
Its Managing General Partner
By:
Fred Gordon,
Its Secretary
"Developer"
ATTEST: �f THE CI Y OF PALM SP I , CALIFORNIA,
a gene a law cit
Lam- C�
�.��. By
City Clerk City nager
"City"
APPROVED AS TO FORM AND ACCURACY
By: 2 �Q
City Att y, Counsel to City
APPROVED by THE CITY CC?tN OL
6VIRES. NO.1-7 -d
/-7 fly?S`
-76-
� o
LIST OF EXHIBITS
1 - Legal Descriptions .
A - Description of Acquisition Property
B - Description of Developer Property
2 - Legal Description of 7 . 5 acre Lease Parcel
3 - Legal Description of Golf Course Site
4 - Tentative Tract Map
-77-
ary lu '38 EZ:06 H.� .-HRRE?2BURRI{ L p
f ^ C492
DESCRIPTION
The land referred to in this report is situated in the. County of Riverside. State of
California, and is described as follows:
That portion of the west half of the Southwest quarter of Section 7, Township 4 Sout
Range 5 East, San Bernardino Meridian, in the City of Palm Springs, County of
Riverside, State of California, according to the official plat thereof, lying East o
the Easterly line of the right of way, 100.00 feet wide,, described in deed to the Ci
of Palm Springs recorded Juntt 18. 1970 as Instrument No. 58064 of Official Records.
NOTE THE FOLLOWING
Note 1: Basic Rate Applies
Note 2: Information in possession of this Company indicates that a division of land
is contemplated in the current transaction involving the land described in this
report. Such contemplated division of land would appear to fail within the purview o
the Subdivision Map Act and as a prerequisite to the closing of said transaction, at
least one of the following requirements must be accomplished to this Company's
satisfaction:
1) That a subdivision Map has been recorded in compliance with the Subdivision Map
Act or related local ordinances;
2) That a Parcel Map has been recorded in compliance with Subdivision Map Act or
related local ordinances; or
3) That a Certificate of Compliance as provided fort in the Subdivision Map Act has
been recorded; or that other satisfactory evidence indicating compliance or
nonviolation be furnished.
TAX INFORMATION FOR PRORATION PURPOSES ONLY
General and special taxes for the fiscal year 1987-1988
First Installment : S3.51, Paid, without penalties
Second Installment : $3.51. Paid, without penalties
Tax Code : 011-005
Tax Parcel No. t 677-260-021-9
Exemption : Nona
Affecting : Said land
C
EXHIBIT lA
�, pacle 1 of 1 of 7
C492901
DESCRIPTION
The land referred to in this report is situated in the County of Riverside, State of
California, and is described as follows:
That portion of the South half of the Southeast quarter of the Southwest quarter of
Section 7, Township 4 South, -Range 5 East, San Bernardino Meridian, in the City of
Palm Springs, County of Riverside, State of California, according to the official plat
thereof, lying Northeast of the Northeasterly line of the right of way, 100.00 feet
wide, described in deed to the City of Palm Springs. recorded June 18. 1970 as
Instrument No. 58064 of Official Records.
NOTE THE FOLLOWING
r
Note I: Basic Rate Applies
a 2: Information in possession of this Company indicates that a division of land
Is contemplated in the current transaction involving the land described in this
report. Such contemplated division of land would appear to fall within- the purview of
the Subdivision Map Act and as a prerequisite to the closing of said transaction, at
least one of the following requirements must be accomplished to this Company's
satisfaction:
1) That a subdivision Map has been recorded in compliance with the Subdivision Map
Act or related local ordinances; }-
2) That a Parcel Map has been recorded in compliance with Subdivision Map Act or
related total ordinances; or 4=,
3) That a Certificate of Compliance as provided for in the Subdivision Map Act has
been recorded; or that other satisfactory evidence indicating compliance or
nonviolation be furnished.
TAX INFORMATION FOR PRORATION PURPOSES ONLY
General and special taxes for the fiscal year 1987-19SS
First Installment : $148-809 Paid. without penalties
Secord Installment : $148.80, Paid, without penalties
Tax Cade : 011-WS
Tax Parcel No. : 677-2"14-3
Exemption None
A� sting Said land
EXHIBIT 1A
Page 2 of 7
... .� �o c�•�o nl�.l h�F.Er?.5URPIL:.. P,3:6
C4924
DESCRIPTION
The land referred to in this report is situated in the County of Riverside, State of
California; and is described as follows:
The North half of the East half of the. Southwest quarter of Section 7, Township 4
South, Range 5 East, San Bernardino Meridian, in the City of Palm Springs. County of
Riverside, State of California, according to the official plat thereof.
EXCEPT that portion lying Hest: of the East line of the right of way, 100.00 feet wide
described in deed to the City of Palm Springs, recorded June 18. 1970 as Instrument
No. 58064 of Official Records. '
. NOTE THE FOLLOWING
Note 1: Information in possession of this Company iruficdtes that a division or land
is contemplated in the current transaction involving the land described in this
report. Such contemplated divis-ion of land would appear to fall within the purview of
the Subdivision Map Act and as a prerequisite to the closing of said transaction, at
least one of the following requirements must be accomplished to this Company's
satisfaction:
1) That a subdivision Map has been recorded in compliance with the Subdivision Map
Act or related local ordinances;
2) That a Parcel Map has been recorded in compliance with Subdivision Map Act or
related local ordinances; or
3) That a Certificate of Compliance as provided for in the Subdivision Map Act has
been recorded; or that other satisfactory evidence indicating compliance or
nonviolation be furnished.
TAX INFORMATION FOR PRORATION PURPOSES ONLY
General and special taxes for the fiscal year 1987-1988
First Installment : $719.19, Paid, without penalties
Second Installment : $719.19, Paid, without penalties
Tax Code : 011-005
Tax Parcel No. : 677-260-011-0
Exemption : None
Affecting : Said land
l
EXHIBIT 1A
Paaa 3 of 7
LLL.1nnr.�:SbUF.RILL P.diS
C C49
DESCRIPTION
The land referred to 1n this report is situated in the County of Riverside, State c
California, and is described as follows:
The Northwest quarter of the Northeast quarter of the Southeast quarter of Section
Township 4 South, Range 5 East, San Bernardino Meridian, in the City of Palm Spring
County of Riverside. State of California, according to the official plat thereof.
TAX INFORMATION FOR PRORATION PURPOSES ONLY
General and special taxes for the fiscal year 1987-1988
First Installment : $163.63, Paid, without penalties
Second Installment : $163.63, Paid, without penalties
Tax Code 011-005
Tax Parcel No. 677-250-005-5
Exemption : None
Affecting : Said land
C C
EXHIBIT 1A
Page 4 of 7
C492St
DESCRIPTION
The land referred to in this report is situated in the County of Riverside, State of
California, and is described as follows:
The Southeast quarter of Section 7, Township 4 South, Range 5 East. San Bernardino
Meridian, in the City of Palm Springs, County of Riverside, State of California,
according to the official plat thereof;
EXCEPT the Northwest quarter of the Northeast quarter of said Section 7.
TAX INFORMATION FOR PRORATION PURPOSES ONLY
General and special taxes for the fiscal year 19a7-1988
First Installment : $2.325.35, Paid, without penalties
Second Installment : $2,325.35, Paid* without penalties
Tax Code : 011-005
Tax Parcel No. : 677-260-.006-6
Exemption None
Affecting Said land
EXHIBIT 1A
Pare 5 of 7
II �
; y; A C492934
DESCRIPTION
The land referred to in this report is situated in the County of Riverside, State of
California, and is described as follows:
The Northeast quarter of Section 7, Township 4 South, Range 5 East, San Bernardino
Meridian, in the City of Palm Springs, County of Riverside, State of California,
according to the official plat thereof, except therefrom that portion of said land
contained in the Final Order of Condemnation recorded June 7, 1965 as Instrument No.
65681, in the Office of the County Recorder of said County.
NOTE THE FOLLOWING
Note 1: This is a standard form report only. It will be supplemented to reflect such
additional matters as are disclosed by our field investigation and extended coverage
survey supplied by the customer„
In order to avoid any last minute delay, said survey should be submitted well in
advance of the contemplated closing date, because the field investigation is not made
until after the survey is received and examined.
A memorandum regarding our survey requirements accompanies this report.
EXHIBIT 1A
Pace 6 of 7
C492915
\ DESCRIPTION
The land referred to in this report is situated in the County of Riverside, State of
California, and is described as follows:
That portion of Section 18, Township 4 South, Range 5 East, San Bernardino Meridian,
in the City of Palm Springs, County of Riverside, State of California, according to
the official plat thereof, described as follows:
Beginning at the Northeast corner of said Section 18;
thence South 00018100/1 East, on the Easterly line of said Section 18, 400.00 feet;
thence North 89034100/1 West, 2,331.23 feet to a point on the Northeasterly right of
way line of Bogie Road;
thence North 36033114/1 West, on ;said right of way, 500.68 feet to the Northerly line
of said Section 18;
thence South 89043130/1 East, 15.26 feet to the North quarter center of said Section 18;
thence South 89034100/1 East, on said Northerly line, 2,612.08 feet to the true point
of beginning.
NOTE THE FOLLOWING
Note 1: This is a standard form report only. It will be supplemented to reflect such
additional matters as are disclosed by our field investigation and extended coverage
survey supplied by the customer.
In order to avoid any last minute delay, said survey should be submitted well in
advance of the contemplated closing date, because the field investigation is not made
until after the survey is received and examined.
A memorandum regarding our survey requirements accompanies this report.
EXHIBIT 1A
C492925
Schedule C
The land referred to in this policy is described as follows:
PARCEL 1•
That portion of Section 18, Township 4 South, Range 5 East, San Bernardino Meridian,
in the City of Palm Springs, County of Riverside, State of California, according to
the official plat thereof, described as follows:
Beginning at the Northeast corner of said Section 18;
thence South 00017149" East, on the Easterly line of said Section 18, 855.00 feet to
the true point of beginning;
thence North 89033131" West, 1„993.48 feet to a point on the Northeasterly right of
way line of Bogie Road;
thence South 36032123" East, on said right of way line, 675.93 feet;
thence South 89033131" East, 1,593.83 feet to the Easterly line of said Section 18;
thence North 00017149" West, on said Easterly line, 540.00 feet to the true point of
beginning.
PARCEL 2•
That portion of Section 18, Township 4 South, Range 5 East, San Bernardino Meridian,
in the City of Palm Springs, County of Riverside, State of California, according to
the official plat thereof, described as follows:
Beginning at the Northeast cornier of said Section 18;
South 00017149" East, on the Easterly line of said Section 18, 400.00 feet to the true
C point of beginning;
thence North 89033131" West, 2,320.21 feet to a point on the Northeasterly right of
way line of Bogie Road;
thence South 36032123" East, on said right of way line, 569.53 feet;
thence South 89033131" East, 1,993.48 feet to the Easterly line of said Section 18;
thence North 00018100" West, on said Easterly line, 455.00 feet to the true point of
beginning.
EXHIBIT 1B
• o
EXHIBIT NO. 2
LEGAL DESCRIPTION OF 7 . 5 ACRE BIRD PRODUCTS LEASEHOLD PARCEL
BEING A PORTION OF THE NORTHWEST QUARTER (1/4) OF SECTION 7,
TOWNSHIP 4 SOUTH, RANGE! 5 EAST, S.B.M., MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
BEGINNING AT THE CENTER QUARTER (1/4) CORNER OF SAID SECTION 7, THENCE
NORTH 89037'53" WEST ALONG THE SOUTH LINE OF SAID NORTHWEST
QUARTER (1/4) A DISTANCE OF 782.13 FEET. THENCE NORTH 0022'07" EAST
PERPENDICULAR TO SAID SOUTH LINE A DISTANCE OF 108.47 FEET TO THE
BEGINNING OF A NON TANGENT CURVE CONCAVE NORTHWESTERLY HAVING A
RADIUS OF 200.00 FEET. A RADIAL BEARING PASSING THROUGH SAID POINT
BEARS SOUTH 15050'12" EAST. THENCE NORTHEASTERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 53000'11" AN ARC DISTANCE OF 185.02 FEET.
THENCE SOUTH 89037'53" EAST PARALLEL WITH SAID SOUTH LINE, A DISTANCE
OF 379.55 FEET. THENCE NORTH 0009'48" WEST PARALLEL WITH THE EAST
LINE OF SAID NORTHWEST QUARTER (1/4), A DISTANCE OF 190.00 FEET.
THENCE NORTH 89050'12" EAST PERPENDICULAR TO SAID EAST LINE A
DISTANCE OF 50.00 FEET. THENCE NORTH 0009'48" WEST PARALLEL WITH SAID
EAST LINE A DISTANCE OF 571 .05 FEET. THENCE SOUTH 89042'43" EAST A
DISTANCE OF 219.28 FEET TO A POINT ON SAID EAST LINE. THENCE SOUTH
0009'48" EAST ALONG SAID EAST LINE A DISTANCE OF 991.36 FEET TO THE
POINT OF BEGINNING.
SAID LAND CONTAINS 7.93 ACRES.
EXHIBIT NO. 2
Page 1 of 2
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DESIGN oY PREPARED UNDER DIRECT UPERVIS"OF JOR NO
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Associates,lne EXHIBIT „B „
Inc—
SIGNATURE CMS!EIEMO,IIIKI,fOI EnjEnea6y ez�
JV R M dPbk.SPM�Cww, PALM SPRINGS CLASSIC SHEET
DS D 777 E Tahq xt Wy Su"]DI OF]
�M DATE�/ � U_ PJwSEmy.CJMw W9IYbIlINM MN l2 -alu ADDITIONAL PROPERTY TO BE ACQUIRED I SHEETS
• 0►
EXHIBIT NO. 3
LEGAL DESCRIPTION OF GOLF COURSE SITE
Those lots shown on attached Exhibit No. 4 as Lots 13,
31, 47 and 48.
EXHIBIT NO. 3
BEING PORTIONS OF SECTIONS 7 AND 18. TOWNSHIP 4 SOUTH. RANGE 5 EAST. SAN BERNARDINO MERIDIAN _
JANUARY 1991
PREPARED FOR
PALM SPRINGS CLASSIC
2496 ANGELO DRIVE
LOS ANGELES. CALIFORNIA 90077 r.0
(213) 550-7697 FAX (213) 278-0282 as
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I - I
I
LAND DISPOSITION AGREEMENT
ANI) ESCROW INSTRUCTIONS
THE CITY OF PALM SPRINGS, CALIFORNIA,
a general law city
"City"
and
PALM SPRINGS INTER-CONTINENTAL
GOLF CENTER JOINT VENTURE,
a California general partnership
"Developer"
2/347/014084-0031/01 5/29/91
• o
TABLE OF CONTENTS
I . ( § 100) PURPOSE OF THE AGREEMENT . . . . . . . . . 1
II . ( § 200) CERTAIN DEFINITIONS . . . . . . . . . . . 2
A. (§ 201) Acquisition Agreements . . . . . . . 2
B. ( § 202) Acquisition Property . . . . . . . . 3
C. (§ 203) Bonds . . . . . . . . . . . . . 3
D. ( § 204) City Project . . 4
E. (§ 205) Construction Agreement . . . . . . . 4
F. ( § 206) Declaration . . . . . . . . . . . . 5
G. ( § 207) Deed . . . . . . . . . . . . 5
H. ( § 208) Developer Project . . . . . . . . 5
I. ( § 209) Developer Property . . . . . . . . . 6
J. ( § 210) Developer Site . . . . . . . . . . . 6
K. ( § 211) Development Agreement . . . . . . . 6
L. (§ 212) Development and Management
Agreements . . . . . . . . . . . . . 7
M. (§ 213) Entire Site . . . . . . . . . . . . 7
N. ( § 214) Golf Course Site . . . . . . . . . . 7
O. (§ 215) Hazardous Substances . . . . . . . . 7
P. ( § 216) Letters of Credit . . . . . . . . . 7
Q. ( § 217) Management Agreement . . . . . . . . 7
R. (§ 218) Operating Guaranty . . . . . . . . . 8
S. ( § 219) Project Agreement . . . . . . . . . 8
T. (§ 220) Sellers . . . . . . . . . . . . . . 8
U. ( § 221) Senca Advance. . . . . . . . . 9
V. (§ 222) Additional Definitions . . . . . . . 9
III . ( § 300 ) PARTIES TO THE AGREEMENT . . . . . . . . 11
A. ( § 301) City . . . . . . . . . . . . . . . . 11
B. (§ 302) Developer . . . . . . . . . . . . . 11
IV. ( § 400) ACQUISITION OF GOLF COURSE SITE . . . . 12
A. (§ 401) Conveyance of Golf Course Site by
Developer . . . . . . . . 12
B. ( § 402) Determination of Purchase Price. . . 12
C. (§ 403) Additional Purchase Price. . . . . . 17
D. ( § 404) Repayment of Senca Advance . . . . . 18
E. (§ 405) Title; Environmental Compliance . . 19
1. Title Report . . . . . . . . . . 19
2. Removal, of Unpermitted Exceptions . . . 21
3 . Title Policy . . . . . . 22
4 . Certification Under California
Environmental Quality Act . . . . . . . 22
F. (§ 406) Pre-Closing Obligations. . . . . . . 23
1. Acquisition of Acquisition Property . . 23
2. Issuance of Bonds . . . . . . . . . . . 24
-i-
• 0
3. Approval of Development Agreement . . . 26
4. Approval of Construction Agreement . . . 28
5. Approval of Management Agreement . . . 29
6 . Processing Developer ' s Applications . . 30
7. Approval of Deed and Project Agreement . 31
8. Approval of Operating Guaranty . . . . . 32
9 . Approval of Declaration . . . . . . . 34
10 . Approval of Golf Course Site . . . . . . 34
11 . Extension of Closing Date for
Obtaining Approvals . . . . . . . . 34
12. Acceptance of Risk of Loss Following
Failure to Agree . . . . . 35
G. (§ 407) Conditions to Closing; Rights of
Termination . . . . . . . . . . . . 36
1 . City' s Conditions to Closing . . . 36
2. Failure of City' s Conditions; Termination 40
3. Developer ' s Conditions to Closing . . . 41
4. Failure of Developer ' s Conditions to
Closing; Termination . . . . . . . . . . 42
H. ( § 408) Escrow . . . . . . . . . . . . . . . 43
1. Opening of Escrow . . . . . . . . . . . 43
2 . Close of Escrow . . . . . . . . . . . . 44
3. Deliveries . . . . . . . . . . . . . . . 44
4. Payment of Costs . . . . . . . . . . . 46
5. Recording and Delivery Instructions . . 47
6. Interest Bearing Accounts . . . . . . . 49
7 . Miscellaneous . . . 49
I . ( § 409) Conveyance of Title and Delivery of
Possession; Proration of Taxes and
Assessments . . . . 50
J. (§ 410) Representations and Warranties by
Developer . . . . . . . . . . . . . 51
1. Disclaimer . . . . . . . . 51
2. Representations and Warranties by
Developer . . . . . . . . 53
3. Indemnification Re: Hazardous Substances 55
4. Definit:ions . . . . . . . . . . . 56
J. ( § 411) Indemnification . . . . . . . . . . 60
1. By City. . . . . . . . . . . . . . . . 60
2. By Developer . . . . . . . . . . . . . . 60
3. Generally . . . . . . . . . . . . . . . 61
V. ( § 500) DEVELOPMENT AND USE OF GOLF COURSE SITE 62
VI. ( § 600) DEFAULTS, REMEDIES AND TERMINATION . . . 62
A. (§ 601) Defaults -- General . . . . . . . . 62
B. ( § 602) Legal Actions . . . . . . . 63
1. Institution of Legal Actions . . . . . . 63
2. Applicable Law . . . . . . . . 63
3. Acceptance of Service of Process . . 64
C. ( § 603) Rights and Remedies are Cumulative . 64
D. ( § 604) Damages . . . . . . . . . . . . . 65
E. ( § 605) Specific Performance . . . . . . 65
-ii-
! 0
F. ( § 606) Attorneys ' Fees . . . . . . . . . . 65
VII . (§ 700) GENERAL PROVISIONS . . . . . 66
A. (§ 701) Notices, Demands and Communications
Between the Parties 66
B. ( § 702) Nonliability of City Officials and
Employees; Conflicts of Interest;
Exculpation from Liability of
Agents of Developer . . . 67
C. ( § 703) Enforced Delay; Extension of Times of
Performance . . . . 68
D. (§ 704 ) Assignment; Successors and Assigns . 69
1. Restrictions on Transfer . . . . . . . . 69
2. Definition of Transfer . . . . . . . . . 70
E. ( § 705) Interpretation . . . . . . 71
F. (§ 706 ) Entire Agreement; Waivers and
Amendments . . . . . . . . . 71
G. ( § 707) Consent; Reasonableness . . . . . . 71
H. ( § 708) Real Estate Commissions . . . 72
I . ( § 709 ) Time of Essence; Calculation of Time 72
J. (§ 710) Severability . . . . . . . . . . . 73
K. ( § 711) No Partnership . . . . . . . 73
L. ( § 712) Non-Waiver of Governmental Rights 73
M. ( § 713) Execution . . . . . . . . . . . . . 74
-iii-