HomeMy WebLinkAboutA6290 - PACIFICA COMPANIESPACIFICA
C O M P A N I E S
Shaping real estate globally... since 1978
May 6, 2015
City of Palm Springs Via FedEx and e-mail
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: City Manager
City of Palm Springs Via FedEx and e-mail
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: City Attorney
RE: Notice per Section 6.4 of the Operations Covenant No. A6290
recorded on January 15, 2014
Dear City Manager and City Attorney:
As you know, the City of Palm Springs ("City") and Pacifica Companies LLC, a California limited liability
company ("Operator") entered into an Operation Covenant No. A6290 recorded on January 15, 2014
("Covenant") related to the hotel previously known as The Spanish Inn and now known as Triada Palm
Springs located at 640 North Indian Canyon Drive in the City of Palm Springs, County of Riverside, and
State of California.
Per Section 6.4 of the Covenant, this letter serves as formal written notice that the Operator is being
changed to the reflect the actual ownership entity of Triada Palm Springs which is: Pacifica L 39 LLC, a
Delaware limited liability company.
All reimbursement payments should be made payable to Pacifica L 39 LLC and all future notices should
be directed to:
Pacifica L 39 LLC
1775 Hancock Street, Suite 200
San Diego, CA 92110
Attn: Deepak Israni
1775 Hancock Street, Suite 200, San Diego, CA 92110
Page 1 of 2
NC I F 'I-
,C 0 M P A N i E S
shafft red 1978
Should you have any questions or concerns, please contact- Carey Algaze at 619-296-9000 x 178.
Sincerely,
Pacifica L 9 LLG, a Oe ware ! ited liability company
By: ti-��'
Eleepal jrani, its Genead Mast r
Pacifica Companies LLC, a California limited liability company
ByAC Investors Inc, a Cali rnia corporation its General Manager
By.-t
d ❑eel Israni, its Secretary
1775 Hancock Street, Suite 200, San Diego, CA 92110
Page 2 of 2
RECORDING REQUESTED BY:
CITY OF PALM SPRINGS
AND WHEN RECORDED MAIL TO:
City of Palm Springs
P. O. Box 2743
Palm Springs, CA 92263
Attn: Office of the City Clerk
DOC # 2 4-0016353
01/15/2014 08:50A Fee:NC
Page I of 11
Recorded in Official Records
County of Riverside
Larry W. Ward
Assessor, County Clerk & Recorder
1111111111111111111111111111111111111111111111111 1i
S R U PAGE SIZE DA MISC LONG RFD COPY
I Il I
`M/ A L 465 426 PCOR NCOR SMFCH C�EXAM
N CL T: CTY UNI UI� 815
SPACE ABOVE FOR RECORDER ONLY
Filing fee EXEMPT per Government Code 6103
OPERATIONS COVENANT
NO. A6290
Between the
CITY OF PALM SPRINGS
AND
PACIFICA COMPANIES LLC
Title of Document
THIS AREA FOR
RECORDER'S
USE ONLY
THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
($3.00 Additional Recording Fee Applies)
C
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
THE CITY OF PALM SPRINGS
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attention: City Clerk
(Space Above This Line for Recorder's Office Use Only)
OPERATIONS COVENANT ��0
THIS OPERATIONS COVENANT AND DECLARATION OF COVENANTS AND
RESTRICTIONS (this "Covenant") is made and entered into this 14th day of December, 2012,
by and between the CITY OF PALM SPRINGS, a municipal corporation and charter city (the
"City"), and Pacifica Companies LLC, a California limited liability company ("Operator").
RECITALS.'
A. The City Council of City on September 5, 2012, authorized the negotiation of
hotel assistance agreement with Operator for the Triada Palm Springs — Marriott Autograph
Collection Hotel to provide a share of transient occupancy tax and ensure the operation and
maintenance of hotel facilities that enhance the tourist and travel experience for visitors to the
City, maximize the use of the City's Convention Center, provide attractive and desirable visitor
serving facilities and experiences, and assist the City in achieving its tourism goals.
B. Operator is the owner of the Spanish Inn — Marriott Autograph Collection Hotel
("Operator's Hotel" or the "Project'), consisting of approximately fifty five (55) total hotel
rooms, on real property generally located at 640 North Palm Canyon Drive in the City of Palm
Springs, County of Riverside, State of California, more particularly described in Exhibit "A"
attached hereto and incorporated herein by reference (the "Site"). Operator warrants and
represents that Operator's Hotel is a deluxe hotel and Operator has provided City with
independent, third -party certification acceptable to the City of the level of quality of operator's
Hotel is at least that equal to a deluxe hotel. For the purposes of this Covenant, the term "deluxe
hotel" means a hotel which provides standards of physical features and operational services
which include operation of the hotel on a twenty-four hour per day/seven days per weA basis,
housekeeping services, meeting room services, bellman services, and parking services.
C. City and Operator desire to place restrictions upon the use and operation of the
Project and the Operator's property interest, in order to ensure that the Project shall be operated
continuously as a hotel available for short-term rental for the term of this Covenant.
D. City and Operator also agree that in return for participation in the Program,
Operator shall agree to operate the Project as a hotel; participate in the Palm Springs Convention
Center's Committable Rooms Program; and provide City with up to two (2) room -nights per
month for official City use; and, City agrees to share a percentage of Transient Occupancy Tax
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Increment with Operator pursuant to the provisions of this Operations Covenant and any
guidelines as the City Manager of City may implement.
E. The City finds that the approval of this Covenant is categorically exempt from
CEQA under Section 15301 of the California Administrative Code as this Covenant applies to
the operation, repair, maintenance, or minor alteration of existing structures, facilities,
mechanical equipment involving no material expansion of use beyond that previously existing.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Operator hereby commits to the City to undertake the
covenants described herein (the "Operating Covenants") and the City hereby agrees to provide
the Operator with funds as provided under this Covenant and as set forth hereinafter.
ARTICLE 1
STATEMENT OF OPERATING COVENANTS
1.1. OPERATION AND USE COVENANT. Operator covenants to operate, maintain,
and use the Operator's Hotel in accordance with this Covenant. All uses conducted on the Site,
including, without limitation, all activities undertaken by the Operator pursuant to this Covenant,
shall conform to requirements of this Covenant and the Program.
1.2. HOTEL USE. The Operator hereby agrees that the Project is to be owned,
managed, and operated as Triada Palm Springs — Marriott Autograph Collection Hotel in a first-
class manner, and the Project's participation in the Program shall continue in accordance with the
terms of the Program, for a term equal to Five (5) years, commencing upon the date Operator
fast receives from the City the Operator's share of transient occupancy tax revenues pursuant to
the Program, unless and until Operator's participation in the Program is terminated prior thereto
in accordance with this Covenant (the "Term").
1. Housing Uses Prohibited. None of the rooms in the Project will at any
time be utilized as a non -transient residential property including without limitation
dormitory, fraternity or sorority house, rooming house, nursing home, hospital;
sanitarium, or trailer court or park without the City's prior consent, which consent may be
given or withheld in its sole and absolute discretion.
2. Conversion of Project. No part of the Project will at any time be owned
by a cooperative housing corporation, nor shall the Operator take any steps in connection
with the conversion to cooperative housing or condominium ownership, or to any other
similar form of ownership, without the prior written approval of the City Council, which
approval may be given or withheld in its sole and absolute discretion.
ARTICLE 2
WARRANTIES AND COVENANTS
2.1. WARRANTIES AND COVENANTS. For the Term of this Covenant, the
Operator hereby represents., covenants, warrants and agrees as follows:
.2_ oeExanoNS COVENANT
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I. The City shall pay to Operator an amount equal to fifty percent (50%) of
the transient occupancy tax Operator collects and pays to the City pursuant to Palm
Springs Municipal Code Section 3.24.080, as amended from time to time, and in strict
compliance thereof. The City's obligation to pay Operator pursuant to this Section shall
commence with the first return and remittance of transient occupancy tax from the
Operator and will cease on the 60`h month thereafter.
2. Operator hereby agrees to subscribe to the Palm Springs Convention
Center's Committable Rooms Program or any similar successor program as identified by
the City Manager without being obligated to incur any additional costs or expenses.
3. Operator agrees to participate in the Cites convention center hotel shuttle
service on a proportional basis equal to the number of total hotel rooms in Operator's
hotel.
4. Upon the City's prior request, Operator shall provide the City at no cost up
to two (2) rooms for one night (or one or more rooms for a total of two (2) room -nights)
each month for use for City purposes as approved or designated by the City Manager,
provided that such use by the City shall be subject to the rooms being available at the
time of the City's request. Such accommodations shall include all services and amenities
for which the Operator would normally collect transient occupancy taxes but will not
include services and amenities that are optional to transient guests and for which transient
guests are not required to pay transient occupancy taxes. City shall be responsible for
any transient occupancy taxes for any occupancy provided to City under the provisions of
this paragraph. Notwithstanding anything in this Covenant to the cont
rary, if the City
does not use rooms during any month, then its right to use rooms with respect to that
month shall expire at the end of that month and shall not accrue; provided, however, if
the City was unable to use rooms because Operator's Hotel had no rooms available when
the City requested a room in accordance with this Section 2.1.3, then the City's right to
use rooms shall not expire and may be used by the City in a subsequent month.
Operator's obligations under this Section shall cease when the City's obligations to pay
Operator pursuant to Section 1 above ceases.
ARTICLE 3
MAINTENANCE
3.1. MAINTENANCE.
1. Maintenance Obli ag tion. Operator, for itself and its successors and
assigns, hereby covenants and agrees to maintain and repair or cause to be maintained
and repaired the Site and all related on -site improvements and landscaping thereon,
including, without limitation, buildings, parking areas, lighting, signs and walls, in a first
class condition and repair, free of rubbish, debris and other hazards to persons using the
same, and in accordance with all applicable laws, rules, ordinances and regulations of all
federal, state, and local bodies and agencies having jurisdiction, at Operator's sole cost
and expense. Such maintenance and repair shall include, but not be limited to, the
3- OPERATIONS COVENANT
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following: (i) sweeping and trash removal; (ii) the care and replacement of all shrubbery,
plantings, and other landscaping in a healthy condition; and (iii) the repair, replacement
and restriping of asphalt or concrete paving using the same type of material originally
installed, to the end that such paving at all times be kept in a level and smooth condition.
2. Parking and Driveways. The driveways and traffic aisles on the Site shall
be kept clear and unobstructed at all times.
3. Right of Termination. In the event Operator fails to maintain the Site in
the above -mentioned condition, and satisfactory progress is not made in correcting the
condition within thirty (30) days from the date of written notice from City (which notice
shall reasonably identify the required maintenance), City may, at Citys option; and upon
notice to Operator, terminate this Covenant.
ARTICLE 4
COMPLIANCE WITH LAWS
4.1. COMPLIANCE WITH LAWS. Operator shall comply with all ordinances,
regulations and standards of the City applicable to the Site. Operator shall comply with all rules
and regulations of any assessment district of the City with jurisdiction over the Site.
ARTICLE 5
NONDISCRIMINATION
5.1. NONDISCRIMINATION. Operator its employees, agents, successors, and
assigns shall not discriminate by segregation or otherwise against any person, or group of
Persons, on account of race, color, creed, religion, sex, marital status, sexual orientation, national
origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of
the Site, or any part thereof nor shall Operator, or any person claiming under or through it,
establish or permit any such practice or practices of discrimination or segregation with reference
to the Runishing or refusing to furnish such person any accommodation, facility, service, or
Privilege which is offered to or enjoyed by the general public of the Site, or any part thereof
ARTICLE 6
INDEMNIFICATION
6.1. RMEMNWICATION. Operator agrees for itself and its successors and assigns to
indemnify, defend, and hold harmless City and its respective officers, members, officials,
employees, agents, volunteers, and representatives from and against any loss, liability, claim, or
judgment relating in any manner to the Project, excepting only any such loss, liability, claim, or
judgment arising out of the intentional wrongdoing or gross negligence of the City or its
respective officers, officials, employees, members, agents, volunteers, or representatives.
Operator, while in possession of the Site, and each successor or assign of Operator while in
possession of the Site, shall remain fully obligated for the payment of property taxes and
assessments in connection with the Site. The foregoing indemnification, defense, and hold
OPERATIONS COVENANT
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....... _... .... _ _ ..._...__,_.... __ .............I . . .. c
harmless agreement shall only be applicable to and binding upon the party then owning the Site
or applicable portion thereof.
6.2. ATTORNEYS' FEES. In the event that a party to this Covenant brings an action
against the other party hereto by reason of the breach of any condition, covenant, representation
or warranty in this Covenant, or otherwise arising out of this Covenant, the prevailing parry in
such action shall be entitled to recover from the other party reasonable expert witness fees, and
its reasonable attorney's fees and costs. Attorneys fees shall include attorneys fees on any
appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable
costs for investigating such action, including the conducting of discovery.
6.3. AMENDMENTS. This Covenant shall be amended only by a written instrument
executed by the parties hereto or their successors in title, and duly recorded in the real property
records of the County of Riverside.
6.4. NOTICE. Any notice required to be given hereunder shall be made in writing and
shall be given by personal delivery,, recognized overnight courier, certified or registered mail,
Postage prepaid, return receipt requested, at the addresses specified below, or at such other
addresses as may be specified in writing by the parties hereto:
City. City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: City Manager
Copy to: City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: City Attorney
Operator: Pacifica Companies, LLC
1785 Hancock Street, Suite 200
San Diego, CA 92110
Attn:
The notice shall be deemed given three (3) business days after the date of mailing,' one
(1) business day after sending by recognized overnight courier, or, if personally delivered, when
received (or receipt is denied).
6.5. SEVERABILITY/WAIVER/INTEGRATION
1. Severability. If any provision of this Covenant or portion thereof, or the
application to any person or circumstances, shall to any extent be held invalid,
inoperative, or unenforceable, the remainder of the provisions, or the application of such
provision or portion thereof to any other persons or circumstances, shall not be affected
thereby; provided, that if any material terms or provisions of the Operating Covenants are
rehdered invalid, void and/or unenforceable, or changes in' the law would materially alter
the terms of the transactions contemplated herein, the parties agree to meet and negotiate
2014-0916353
in good faith to attempt to reform the Operating Covenants to accomplish the intent of the
parties.
2. Waiver. A waiver by either party of the performance of any covenant or
condition herein shall not invalidate this Covenant nor shall it be considered a waiver of
any other covenants or conditions, nor shall the delay or forbearance by either party in
exercising any remedy or right be considered a waiver of, or an estoppel against, the later
exercise of such remedy or right.
3. Integration. This Covenant contains the entire agreement between the
parties and neither party relies on any warranty or representation not contained in this
Covenant.
4. Third Parties. No third party beneficiaries are intended, and the only
parties who are entitled to enforce the provisions of this Covenant are the City, any
mortgagees that may succeed to Operator's leasehold interest under the ground lease
between Operator and fee owner of the Site or a replacement thereof, Operator and each
of their respective successors and assigns.
6.6. GOVERNING LAW. This Covenant shall be governed by the laws of the State
of California.
6.7. COUNTERPARTS. This Covenant may be executed in any number of
counterparts, each of which shall constitute one original and all of which shall be one and the
same instrument.
6.8 TERMINATION. The City may terminate this Covenant by providing written
notice to Operator that Operator has failed to comply with its obligations under Articles 1, 2, or '3
of this Agreement but only after the City has'provided Operator with (a) written notice of default
and (b) thirty (3.0) days to cure such default. Operator may elect to terminate its participation in
the Program and this Covenant by providing written notice to the City if the City fails to deliver
to Operator any amounts owed to Operator pursuant to the Program within thirty (30) days after
Operator's written request for payment. In the event of any early termination of this Covenant,
Operator (or its successor, as applicable) shall not be obligated to return any amounts previously
paid to it by the City pursuant to the Program.
[END -- SIGNATURES ON NEXT PAGE]
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OPERATIONS COVEN W
IN WITNESS WHEREOF, the City and Owner have executed. this Operations Covenant
by duly authorized representatives on the date first written hereinabove.
ATTEST:
Jame�Tho�mpso�n,Ci�fyCl�erk
City Clerk
APPROVED AS: TO FORM:
LIM
City Attorney
"CITY"
THE CITY OF PALM SPRINGS,
a municipal corporation and charter city
By:
David H. Ready, y Manager
City Manager
APPROVED BY CITY COUNCIL
"OPERATOR"
Pacifica Companies LLC,
a California limited liability company
•
iTi1�Cl:�
Name:
Title:
[END OF SIGNATURES]
-7-
OPERATIONS COVENANT
2014-6016353
EXHIBIT "A"
LEGAL DESCRIPTION
The land referred to herein is situated in the State of California, County of Riverside, City of
Palm Springs, and described as follows:
Lot(s)1 of Tract No. 31104, as shown by map on file in Book 429 Page(s) 82-83, of Maps, in the
City of Palm Springs, Records of Riverside County, California; Excepting therefrom all oil, gas or
other hydrocarbon substances, without right of surface entry, as reserved in deeds recorded
April 26,1927 in Book 716, Page(s) 69 of Deeds, July 14, 1927 in Book 721, Page(s) 389 of
Deeds, August 19, 1935 in Book 243, Page(s) 393, November 18, 1937 in Book 352, Page(s)168,
March 11,1936 in Book 269, Page(s) 259 and May 14,1934 in Book 173, Page(s)124, all of
Official Records.
APN 507-183-007-7
(End of Legal Description)
11111iriu . �,a �,m .
State of California
County of
On
ACKNOWLEDGMENT
before me,
(insect name of notary)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
ACKNOWLEDGMENT
State of California }
County of -SGt ,i Q 1 QG) o )
On Z / 1V"y1 1 el Z 01 before me, Z- - Z-� vr�a
(insert name of notary)
Notary Public, personally appeared mall
who proved to me on the basis of satisfactory evidence to be the person(o whose name(A) is/are
subscribed to the within instrument and acknowledged to me that he/shefthey executed the same
in hi&UfAheir authorized capacity(iess), and that by his/heMbeir signature(4 on the instrument
the personK or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
L. LEHMANN
Commission # 1967987
Notary Public - California z
z �_
Z San Diego County
My Comm. Expires Feb 26, 2016
ACKNOWLEDGMENT OF INSTRUMENT
(Cal. Civil Code Section 1181)
State of California )
County of Riverside ) Ss.
City of Palm Springs )
On January 6, 2014, before me, JAMES THOMPSON, CITY CLERK, CITY OF
PALM SPRINGS CALIFORNIA, personally appeared DAVID H. READY, who
personally know is the CITY MANAGER of the CITY OF PALM SPRINGS whose name
is subscribed to the within instrument and acknowledged to me that he executed the
same in his official and authorized capacity on behalf of the City of Palm Springs, a
California Charter City.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
Witness my hand and the official seal of the City of Palm Springs, California, this
6th day of January, 2014.
iy
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Signature:
AMES THOMPSON, CITY CLERK
City of Palm Springs, California
Title or Type of Document: OPERATIONS COVENANT
Pacifica Companies LLC A6290
Document Date: December 14, 2012
Number of Pages: 11, including this page
2014-0016353