HomeMy WebLinkAbout4/4/2001 - STAFF REPORTS DATE: APRIL 4, 2001
TO: COMMUNITY REDEVELOPMENT AGENCY
FROM: DIRECTOR OF REDEVELOPMENT
APPROVAL OF AN OWNER PARTICIPATION AGREEMENT WITH JOHN WESSMAN,
DBA WESSMAN DEVELOPMENT COMPANY TO PROVIDE FINANCIAL ASSISTANCE
FOR THE RENOVATION AND REDEVELOPMENT OF THE PLAZA DEL SOL
SHOPPING CENTER, 1555 SOUTH PALM CANYON DRIVE
RECOMMENDATION:
That the Community Redevelopment Agency of the City of Palm Springs ("CRA")
approve an Owner Participation Agreement ("OPA") with John Wessman, dba
Wessman Development Company, providing tax increment financing assistance
for the rehabilitation and redevelopment of the Plaza Del Sol shopping center to
accommodate and locate Stein Mart in the center.
SUMMARY:
In order to facilitate the leasing of the anchor space in Plaza Del Sol to a new
tenant, Stein Mart, to replace the vacated Ralphs Grocery store, Wessman
sought Agency assistance to cover a portion of the gap between the rent that
Ralphs would continue to pay and what Stein Mart would pay, once the tenant
improvement costs were factored in. Under the proposed agreement, the Agency
would pay Wessman Development Co. a maximum of$20,000 per year for 5
years, starting in Fiscal Year 2001-02. The annual amount would be reduced if
the sales tax revenue from Stein Mart falls below $60,000 per year.
BACKGROUND:
Staff negotiated this agreement with Wessman in the summer of 2000, prior to
Wessman leasing Stein Mart the property, in order to facilitate the redevelopment
of the center. The center has been only marginally viable for the past eight
years, since Ralphs relocated their 38,000 s.f. store to the Smoketree Center.
During that time Ralphs continued to pay the base rent plus the triple net (NNN)
costs. Several prospective tenants have looked at the space over the past
several years, most recently Stater Bros., prior to the Lucky-Albertson's merger.
In the end, every grocery chain that looked at leasing the space backed away
because of concerns about market radius, since the center backs up to the
mountains and does not possess a full 360 degree market area necessary for
grocery stores.
A better tenant for the space is a store like Stein Mart, which opened on
November 2, 2000. Stein Mart is a national retailer, heavily concentrated in the
East and Midwest. They entered the California market only a few years ago. The
store is a fashion discounter that competes with department stores rather than
other discounters such as Ross or Marshall's. The key difference is they way the
store is fixtured and merchandised — it looks and feels like a department store,
complete with sales professionals in each department. In the Consumer Reports
issue on Where to Shop (November 1998), Stein Mart ranked 2nd nationally in the
category of Department Stores, behind Nordstrom but ahead of other storied
retailers such as Lord & Taylor, Dayton's, Bloomingdale's, and Kohl's.
CkI
The request for Agency financial assistance to make the deal work was based
financing gap was determined to be $60,392 per year. That gap was calculated
as follows:
Calculate of Annual Net Shortfall from Stein Mart Lease
Annual Amortization of the Cost to $523,131
Developer to Lease the Building to
SteinMart: Net Cost after Ralphs
Contribution
Annual Amortization of those costs $85,137
(10% interest over 10 years)
Total Additional Annual Rent $24,745
Collected from Stein Mart over
Ralphs base rent
Net Annual Shortfall over ten years $85,137
24 745
$60,392
The OPA proposes rebating to the Developer an amount not to exceed $20,000
per year for five years from tax increment in Merged Project Area#1 (formerly the
South Palm Canyon Project Area), based on the sales performance of the Stein
Mart store. This rebate would cover approximately one-third of the annual net
shortfall for half the lease period. In return for the assistance, the Developer
agrees to enter the Agreement which contains certain Covenants, Codes, and
Restrictions governing the tenanting of the space, the operation of the store and
center, and the maintenance of the property. CC&Rs are common in Agency
agreements: they give the Agency a mechanism to ensure the continued quality
of the property and compensate the owner for the restrictions now placed on the
property.
At ached is the owner participation agreement.
OOHN S. RAYMON
Difector f RedeVglopment
APPRO D: J�
Executive Direc
ATTACHMENTS:
1. Resolution
2. Owner Participation Agreement
REVIEWED BY DEFT.OF FINANCE
( r
CRA A •2,
OWNER PARTICIPATION AGREEMENT
THIS OWNER PARTICIPATION AGREEMENT ("Agreement') is entered into as of
the day of February, 2001 ("Effective Date"), by and between THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public agency,
corporate and politic ("Agency"), and JOHN WESSMAN, dba WESSMAN DEVELOPMENT
COMPANY("Participant').
RECITALS
A. Agency is a public body, corporate and politic, exercising governmental functions
and powers and organized and existing under the Community Redevelopment Law of the State
of California (Health and Safety Code Section 33000, et seq.).
B. Agency desires to implement the Redevelopment Plan for the Merged Project
Area No. 1 ("Redevelopment Project Area" or "Project Area") by imposing covenants upon the
operation of a portion of the Project Area designated herein as the "Site" (as those terms are
defined herein).
C. Participant has redeveloped the Site in accordance with the requirements of the
Agency and City of Palm Springs ('City") as set forth in the approvals granted Participant by
Agency on file with the City, and has represented to the Agency that Participant has the
experience and financial capability to successfully operate the "Store", as that term is defined
herein, upon the Site.
D. The redevelopment, operation and maintenance of the Site pursuant to the
conditions imposed by the City and Agency, and the fulfillment generally of this Agreement are
in the vital and best interests of the City, and the health, safety, morals and welfare of its
residents and in accord with the public purposes and provisions of the applicable state and local
laws and requirements under which the Project has been undertaken and is being assisted.
NOW THEREFORE, in consideration of the promises and covenants contained herein,
the above recitals, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
SECTION 1. DEFINITIONS.
The following terms as used in this Agreement shall have the meanings given unless
expressly provided to the contrary:
1.1 Agency.
The term "Agency" shall mean the Community Redevelopment Agency of the City of
Palm Springs, a public body, corporate and politic, having its offices at 3200 E. Tahquitz Canyon
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Way, Palm Springs, CA 92263, and any assignee of, or successor to, the rights, powers, and
responsibilities of Agency.
1.2 Agency/City and Agency/City Personnel.
The term "Agency/City and Agency/City Personnel" shall mean, individually and
collectively, the Agency, the Agency governing board, the City, the City Council, and all elected
and appointed boards, commissions, and agencies of the Agency or City, and Agency's and
City's respective elected and appointed officers, officials, members, employees, agents,
representatives, consultants, and volunteers, acting in an official capacity.
1.3 Agency's Conditions to Funding.
The term "Agency's Conditions to Funding" shall have the meaning ascribed at Section
4.1.1.
1.4 Agency Assistance.
The term"Agency Assistance" shall have the meaning set forth in Section 4.1.
1.5 Agreement.
The term "Agreement" or any reference to "the Agreement" or "this "Agreement" shall
mean this Owner Participation Agreement executed by and between Agency and Participant,
including all exhibits and attachments attached hereto, which exhibits are incorporated herein by
this reference and all other documents incorporated herein by reference.
1.6 Agreement Containing Covenants Affecting Real Property.
The term "Agreement Containing Covenants Affecting Real Property" shall mean the
agreement to be signed by Participant and recorded against Participant's ownership interest, in
the form set forth as Exhibit"F".
1.7 CEOA.
The term "CEQA" shall mean the California Environmental Quality Act, Public
Resources Code Section 21000 et seq., as may from time to time be amended, and the
regulations promulgated thereunder, 14 California Code of Regulations Section 15000 et seq., as
may from time to time be amended.
1.8 City.
The term "City" shall mean the City of Palm Springs, a California municipal corporation,
having its offices at 3200 E. Tahquitz Canyon Way, Palm Springs, CA 92263. The City is not a
party to this Agreement and shall have no obligations hereunder.
1.9 Covenant to Operate.
The term "Covenant to Operate" shall have the meaning ascribed at Section 5.1.
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1.10 Covenant to Operate and Use Covenants.
The term "Covenant to Operate and Use Covenants" shall have the meaning ascribed at
Section 5.1.
1.11 Days.
The term "days" shall mean calendar days and the statement of any time period herein
shall be calendar days and not business or working days, unless otherwise specified.
1.12 Disbursement Date(s).
The term "Disbursement Date(s)" shall mean the dates that the Agency disburses the
Agency Assistance to Participant in accordance with Section 4.1, the Promissory Note and the
Schedule of Performance specifically and the terms of this Agreement generally.
1.13 Effective Date.
The term "Effective Date" shall mean the date this Agreement is executed on behalf of
Agency after approval by the Agency Board, which date shall be inserted into the preamble to
this Agreement.
1.14 Executive Director.
The term "Executive Director" shall mean the individual duly appointed to the position of
Executive Director of the Agency. The Executive Director shall have the authority to (i) take
such actions necessary to implement the terms of this Agreement with the exception of actions
required by law to be taken by the Agency Board, and (ii) execute all documents necessary to
implement the terms of this Agreement with the exception of those documents required by law to
be executed by the Agency Chairman pursuant to approval of the governing board of the
Agency.
1.15 Force Majeure.
The term "Force Majeure" shall mean any war, insurrection, strike, lock-out, labor
dispute, riot, flood, earthquake, fire, casualty, act of God, act of the public enemy, epidemic,
quarantine restriction, freight embargo, unavoidable lack of transportation, governmental
restriction, unusually severe weather, inability to secure necessary labor, materials or tools, delay
of any contractor, subcontractor or supplier, act of the other party, act or failure to act of City or
any other public or governmental agency or entity (except that any act or failure to act of Agency
shall not excuse performance by Agency), or any other cause beyond the control or without the
fault of the party claiming an extension of time to perform. Economic or market conditions or
inability to secure financing shall not constitute a Force Majeure event.
1.16 Governmental Approvals.
The term "Governmental Approvals" shall mean and include, if any, any and all general
plan amendments, specific plans or specific plan amendments, zoning approvals or changes,
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required approvals and certifications under the California Environmental Quality Act, tentative
and final tract maps/parcel maps, variances, conditional use permits, demolition plans and
permits, excavation/foundation permits, grading plans and permits, material pallets, landscape
plans and permits, structural, mechanical, and electrical systems plans and permits, preliminary
and final building plans, building permits, inspection reports and approvals, temporary and
permanent easements, certificates of occupancy, and all other approvals, permits, orders,
consents, entitlements, filings, registrations, and actions of any nature whatsoever required from
any Governmental Authority in order to commence and complete the construction of the Project
at the Site.
1.17 Governmental Authority.
The term "Governmental Authority" shall mean the United States, the State of California,
the County of Riverside, the City of Palm Springs, or any other agent, court, political
subdivision, or instrumentality, including but not limited to any regional governmental authority
or any quasi-governmental authority, have jurisdiction over the Site.
1.18 Hazardous Material.
The term "Hazardous Material" is defined to include any hazardous or toxic substance,
material or waste which is or becomes regulated by any local or regional governmental authority,
the State of California, or the United States Government. The term "Hazardous Material"
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 Waste 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 255010) and (k) and 25501.1 of the California
Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response
Plans and Inventory); (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 seq. (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 seq. (42 U.S.C. §
9601); (xiii) defined as "Hazardous Material" pursuant to the Hazardous Materials
Transportation Act, 49 U.S.C. § 1801 et seq.; 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 to, or imposing liability or standards of
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conduct concerning Hazardous Materials and/or oil wells and/or underground storage tanks
and/or pipelines, as now, or at any time hereafter, in effect.
1.19 Notice of Release of Covenant to Operate and Use Covenants.
The term "Notice of Release of Covenant to Operate and Use Covenants" shall have the
meaning ascribed in Section 5.1. The form of the Notice of Release of Covenant to Operate and
Use Covenants shall be as set forth in Exhibit"E".
1.20 Participant.
The term "Participant' shall mean John Wessman, dba Wessman Development
Company, owner of the Site. As owner of the Site, Participant qualifies as an "owner-
participant" within the meaning of the California Community Redevelopment Law, the
Redevelopment Plan, and Agency's adopted owner participation rules. The term "Participant"
includes any legally permissible assignee or successor to the rights, powers, and responsibilities
of Participant hereunder in accordance with the Transfer provisions of Section 1.28. The
Participant's address for the purposes of this Agreement is 1555 South Palm Canyon Drive, Suite
G-106, Palm Springs, California, 92264.
1.21 Project.
The term "Project" shall mean the construction of a 38,000 square foot retail clothing and
apparel department store in addition to parking, landscaping, lighting, signage, and related
amenities upon the Site in conformance with the Governmental Approvals, which construction
has been completed by Participant as of the date of this Agreement.
1.22 Promissory Note.
The term "Promissory Note" shall mean the promissory note executed by the Agency in
favor of Participant, as described in Section _. The Promissory Note shall be in the form set
forth in Exhibit "D".
1.23 Redevelopment Plan.
The term "Redevelopment Plan" shall mean the Redevelopment Plan for the South Palm
Canyon Project Area, which was adopted by Ordinance No. 1203 of the City Council of City on
November 30, 1983, and amended on December 21, 1994 by Ordinance No. 1494, on December
15, 1999 by Ordinance 1576, and on May 31, 2000 by Ordinance 1584, which merged the South
Palm Canyon Project with the Central Business District, Ramon-Bogie, Oasis, North Palm
Canyon, and Project Area #9 into Merged Project Area #1. A copy of the South Palm Canyon
Redevelopment Plan is on file in the Office of the City Clerk of the City. The Redevelopment
Plan is incorporated herein by this reference and made a part hereof as though fully set forth
herein.
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1.24 Redevelopment Project Area.
The term "Redevelopment Project Area" shall mean the territory comprising the Merged
Project Area No. 1, including formerly the South Palm Canyon Area No. 3, which is located in
the City of Palm Springs, California. The exact boundaries of the Redevelopment Project Area
are specifically described in the Redevelopment Plan.
1.25 Site.
The term "Site" shall mean that certain real property consisting of approximately 38,000
square feet, located at 1555 South Palm Canyon Drive in the City of Palm Springs, County of
Riverside, State of California, which leasehold interest is commonly known as Assessor Parcel
No. 009 603 208 (fee interest Assessor Parcel No. 513 300 038), as more particularly in the legal
description set forth in Exhibit"A" and depicted on the Site Map.
1.26 Site Man.
The term "Site Map" shall mean the map attached hereto as Exhibit `B" and incorporated
herein by reference depicting the location of the Site.
1.27 Store.
The term "Store" shall mean the Stein Mart clothing and apparel department store
constructed by Participant and opened for business at the Site before Effective Date of this
Agreement, and operated pursuant to the terms of this Agreement.
1.28 Transfer.
The term "Transfer" shall mean any assignment, hypothecation, mortgage, pledge,
conveyance, lease, sale, exchange, gift, or encumbrance of all or any portion of this Agreement,
the Site, or the improvements thereon, whether voluntary, involuntary or by operation of law,
that results in a transfer to any person, or any group of persons acting in concert, of twenty-five
percent (25%) or more of the present ownership and/or control of Participant, taking all transfers
into account on a cumulative basis. In the event Participant or its successor is a corporation or
trust, such transfer shall refer to the transfer of the issued and outstanding voting rights or capital
stock of Participant, or of the beneficial interests of such trust, totaling twenty-five percent (25%)
or more on a cumulative basis; in the event that Participant is a limited or general partnership,
such transfer shall refer to the transfer of more than twenty-five percent (25%) of the limited or
general partnership interests, taking all transfers into account on a cumulative basis; in the event
that Participant is a joint venture, such transfer shall refer to the transfer of more than twenty-five
percent (25%) of the ownership and/or control of any such joint venture partner, taking all
transfers into account on a cumulative basis.
1.29 Use Covenants Period.
The term "Use Covenants Period" shall have the meaning ascribed at Section 5.1.
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SECTION 2. PURPOSE OF THIS AGREEMENT.
This Agreement and the Exhibits attached hereto are intended to effectuate the
Redevelopment Plan for the Redevelopment Project Area by assuring proper maintenance and
continued operation of the Store on the Site for the term set forth in this Agreement and the
Agreement Containing Covenants at Exhibit "F". Participant participated in the redevelopment
of the Site by developing the Store thereon pursuant to the conditions imposed by the Agency
and the City. The redevelopment of the Site, and the maintenance and operation of the Store
thereon under this Agreement, are in the best interests of the City and the welfare of its residents,
and are in accordance with the public purposes and provisions of applicable federal, state, and
local laws and requirements under which the Project has been undertaken and is being assisted.
This Agreement is entered into by the Agency pursuant to its authority under the
Community Redevelopment Law of the State of California, Health and Safety Code Sections
33000 et seq. (all statutory references herein are to the Health and Safety Code unless otherwise
provided); which authorizes the Agency to provide assistance to facilitate the redevelopment of
the Project Area in conformity with the Redevelopment Plan.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
3.1 Participant Representations and Warranties.
Participant hereby makes the following representations, covenants, and warranties for the
benefit of Agency, and Agency's successors and assigns, and acknowledges that the execution of
this Agreement by Agency has been made, in MATERIAL reliance by Agency on such
representations and warranties:
3.1.1 Right to Enter into Agreement.
(i) Participant is a sole proprietorship duly organized and existing under the laws of the
State of California; (ii) Participant is duly qualified to do business in good standing under the
laws of the State of California and has all requisite power and authority to carry out its business
as now and whenever conducted and to enter into and perform its obligations under this
Agreement; (iii) the entering into this Agreement by Participant does not violate any provision of
any other agreement to which Participant is a party; (iv) except as may be specifically set forth in
this Agreement, no approvals or consents not heretofore obtained by Participant are necessary in
connection with the execution of this Agreement by Participant or with the performance by
Participant of its obligations hereunder; (vi) Participant has not filed or been the subject of any
filing of a petition under the Federal Bankruptcy Law or any insolvency laws, or any laws for the
discharge of indebtedness or for the reorganization of debtors; (vii) no representation, warranty,
or covenant of Participant in this Agreement, or in any document or certificate furnished or to be
furnished to Agency pursuant to this Agreement, contains or will contain any untrue statement of
a material fact or omits or will omit to state a material fact necessary to make the statements
contained herein or therein not misleading; (viii) Participant has not paid or given to, and will not
pay or give to, the Agency or City or any official or agent of the Agency or City any money or
other consideration for obtaining this Agreement, except as expressly provided herein; and (ix)
Participant is the owner of a leasehold interest in the Site and has the right of possession of the
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Site, free from any tenant leases, tenancies, licenses, or other similar occupancy agreements that
could interfere with Participant's right to maintain and operate the Store on the Site.
3.1.2 Development of the Site.
Participant has developed the Project at the Site in accordance with all Governmental
Approvals, and the Project (a) complies with all applicable laws and ordinances of all
governmental authorities, including, without limitation, all laws and ordinances necessary to
permit development of the Site; (b) is entirely on the Site and does not encroach upon the land of
others or over bound any easement or right-of-way; and (c) is wholly in compliance with any
enforceable building restriction laws, however established, and does not and shall not violate any
enforceable use, easement, license, covenant, condition or other restriction affecting the Site.
3.1.3 Fair Market Value of the Site.
Participant represents that as of the Effective Date of this Agreement, the Site, as
improved with the Project, has a fair market value that exceeds the amount of the Agency
Assistance provided by Agency to Participant pursuant to Section 4.1 herein.
3.2 Agency Representations and Warranties.
Agency hereby makes the following representations, covenants, and warranties for the
benefit of Participant, and Participant's successors and assigns, and acknowledges that the
execution of this Agreement by Participant has been made, in MATERIAL reliance by
Participant on such representations and warranties: (i) Agency is a redevelopment agency duly
organized and existing under the laws of the State of California; (ii) by proper action of Agency,
Agency has been duly authorized to execute and deliver this Agreement, acting by and through
its duly authorized officers; and (iii) the entering into this Agreement by Agency does not violate
any provision of any other agreement to which Agency is a party.
3.3 No Representation or Warranty Concerning Governmental Approvals.
Notwithstanding anything contained herein to the contrary, the Agency makes no
representations or warranties with respect to the approvals required by any other governmental
entity, including the City, or with respect to approvals hereinafter required from the Agency.
The Agency reserves full police power authority over the Project and Participant acknowledges
that the City retains such full police power as well. Nothing in this Agreement shall be deemed
to be a prejudgment or commitment with respect to such items nor to guaranty that such
approvals will be issued within any particular time or with or without any particular conditions.
3.4 No Brokers.
Participant shall indemnify, defend, and hold the Agency harmless from any against any
and all claims, liabilities, damages, suits, judgments, and costs (including attorney's fees) for the
payment of any real estate commission or finder's or broker's fee arising out of this Agreement
or the conveyances or transactions described herein.
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SECTION 4. AGENCY ASSISTANCE.
4.1 Agency Assistance.
Within the time set forth in the Schedule of Performance, but subject to the satisfaction or
Agency's waiver of each and all of Agency's Conditions to Funding set forth in Section 4.1.1,
Agency shall grant to Participant the maximum sum of ONE HUNDRED THOUSAND AND
00/100 DOLLARS ($100,000.00) ("Agency Assistance") representing the fair market value of
the Covenant to Operate and Use Covenants acquired by Agency herein and subject to the terms
and conditions set forth in the Promissory Note attached hereto as Exhibit "F". The Agency shall
disburse the Agency Assistance provided that Participant satisfies the Agency's Conditions to
Funding described at Section 4.1.1 below, the conditions set forth in the Promissory Note and
upon the times set forth in the Promissory Note and Schedule of Performance ("Disbursement
Dates"). The Agency Assistance is provided pursuant to the Agency's authority under the
California Community Redevelopment Law, including Health and Safety Code Section 33445.
Agency shall have no responsibility or obligation for any income tax or other tax consequences
to Participant resulting from the provision of the Agency Assistance.
4.1.1 Agency's Conditions to Disbursement of the Agency Assistance.
Agency's obligations to disburse the Agency Assistance to Participant shall be
conditioned and contingent upon the satisfaction, or Agency's written and signed waiver, of each
of the following conditions precedent (collectively, the"Agency's Conditions to Funding"):
4.1.1.1. Agency has confirmed Participant's ownership of the Site
by its review of a title report, in a form and from a title company acceptable to Agency, provided
by Participant at Participant's sole cost, confirming Participant's ownership of the Site
4.1.1.2. Participant has signed, acknowledged, and delivered to
Agency's Executive Director the Agreement Containing Covenants Affecting Real Property.
4.1.1.3. Participant shall have timely obtained the insurance
required by Section 4.3 of this Agreement and provided satisfactory evidence of such insurance
to Agency's Executive Director;
4.1.1.4. All representations and warranties by Participant in this
Agreement shall be true on and as of the Disbursement Date as though made at that time and all
covenants of Participant which are required to be performed prior to the Disbursement Date shall
have been performed by such date.
4.1.2 Failure of Agency's Conditions; Termination.
The failure of any of the Agency's Conditions to Funding shall not be an excuse for
Agency's complete performance under this Agreement if the failure of the condition is due in
whole to the fault of Agency. Agency shall cooperate with Participant to attempt to satisfy each
and every one of the Agency's Conditions to Funding. In the event, however, that Agency has
fully performed its obligations under this Agreement but any of the Agency's Conditions to
Funding is not satisfied or waived in a writing signed by Agency prior to the expiration of the
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applicable period for satisfaction or waiver, Agency may, in addition to asserting or claiming any
other right or remedy Agency may have hereunder for Participant's breach or default hereunder,
cancel terminate this Agreement by delivering thirty (30) days written notice to Participant.
Participant may nullify Agency's notice to terminate this Agreement if, within thirty (30) days
after receipt of Agency's notice, Participant cures any unsatisfied Agency's Conditions to
Funding and notifies Agency in writing. In the event of termination pursuant to this Section, this
Agreement shall terminate and the parties hereto shall have no further rights or obligations
hereunder. Additionally, upon termination hereunder, the Promissory Note shall be cancelled
and terminated, the Agency may cease making payments of the Agency Assistance under the
Promissory Note and the Agency shall have no further obligation under the Promissory Note.
The provisions of Section 6.1 shall govern in the event of termination.
4.1.3 Cost of Construction.
All costs of preparing and developing the Project and constructing all improvements
thereon and all required off-site improvements incurred by Participant, including, but not limited
to any and all costs for architectural and engineering plans, preparation of the Site, costs
associated with meeting applicable seismic standards, interim and permanent financing, broker's
and leasing commissions, and fees or charges for development and building, and all other costs
associated with the development of the Project on the Site shall be borne solely by Participant.
4.2 Liability: Worker's Compensation; Automobile and Builder's Risk Insurance.
Within the time set forth in the Schedule of Performance, Participant shall procure and
maintain, at its sole cost and expense, in a form and content satisfactory to Agency, during the
entire term of this Agreement, the following policies of insurance:
4.2.1 Commercial General LiabilityInsurance.
A policy of commercial general liability insurance written on a per occurrence basis in an
amount not less than either (i) a combined single limit of ONE MILLION DOLLARS
($1,000,00.00) or (ii) death and bodily injury limits of ONE MILLION DOLLARS
($1,000,000.00) per person, ONE MILLION DOLLARS ($1,000,00.00) per occurrence, and
products and completed operations and property damage limits of ONE MILLION DOLLARS
($1,000,000.00) per occurrence and ONE MILLION DOLLARS ($1,000,000.00) in the
aggregate.
4.2.2 Worker's Compensation Insurance.
A policy of worker's compensation insurance in such amount as will fully comply with
the laws of the State of California and which shall indemnify, insure and provide legal defense
for both the Participant, Agency and the City against any loss, claim or damage arising from any
injuries or occupational diseases occurring to any worker employed by or any persons retained
by the Participant in the course of carrying out the work or services contemplated in this
Agreement.
4.2.3 Automotive Insurance.
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A policy of comprehensive automobile liability insurance written on a per occurrence
basis in an amount not less than either (i) bodily injury liability limits of FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00) per person and ONE MILLION DOLLARS
($1,000,000) per occurrence, and property damage liability limits of FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00) per occurrence and ONE MILLION DOLLARS
($1,000,000) in the aggregate, or (ii) combined single limit liability of ONE MILLION
DOLLARS ($1,000,000). Said policy shall include coverage for owned, non-owned, leased, and
hired cars.
All of the above policies of insurance shall be primary insurance and shall name Agency,
City, and their respective members, officers, officials, employees, agents, and representatives
(collectively, "Agency/City and Agency/City Personnel") as additional insureds. The insurer
shall waive all rights of subrogation and contribution it may have against Agency/City and
Agency/City Personnel, and their respective insurers. All of said policies of insurance shall
provide that said insurance may not be amended or cancelled without providing thirty (30) days
prior written notice to Agency and City. In the event any of said policies of insurance are
cancelled, Participant shall, prior to the cancellation date, submit new evidence of insurance in
conformance with this Section to the Executive Director. No work or services under this
Agreement shall commence until the Participant has provided Agency with Certificates of
Insurance or appropriate insurance binders evidencing the above insurance coverages and said
Certificates of Insurance or binders are approved by Agency.
The policies of insurance required by this Agreement shall be satisfactory only if issued
by companies qualified to do business in California, rated "A" or better in the most recent edition
of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a
financial category Class VII or better, unless such requirements are waived by the Risk Manager
of the Agency ("Risk Manager") due to unique circumstances. In the event the Risk Manager
determines that the work or services to be performed under this Agreement creates an increased
or decreased risk of loss to the Agency, Participant agrees that the minimum limits of the
insurance policies required by this Section may be changed accordingly upon receipt of written
notice from the Risk Manager; provided that the Participant shall have the right to appeal a
determination of increased coverage by the Risk Manager to the Board of Directors of the
Agency within ten (10) days of receipt of notice from the Risk Manager.
Participant shall provide in all contracts with contractors, subcontractors, architects and
engineers that said contractor or subcontractor shall maintain the same policies of insurance
required to be maintained by Participant pursuant to this Section.
Participant agrees that the provisions of this Section shall not be construed as limiting in
any way the extent to which the Participant may be held responsible for the payment of damages
to any persons or property resulting from the Participant's activities or the activities of any
person or persons for which the Participant is otherwise responsible.
4.3 Rights of Access.
Representatives of Agency shall have the reasonable right of access to the Site without
charges or fees, at any time the Use Covenants Period for the purpose of assuring compliance
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with this Agreement. Such representatives of Agency shall be those who are so identified to
Participant by the Executive Director of Agency. Each such representative of Agency shall
identify himself or herself upon his or her entrance to the Site and shall provide Participant's
representative or similar person in charge on the Site a reasonable opportunity to have a
representative accompany him or her during the inspection. If the Agency, in its discretion,
determines that Participant's operation, or the appearance, of the Store is not in conformity with
the Government Approvals or any other provisions of this Agreement, or any laws or ordinances,
or not otherwise in conformity with the laws of the City, Agency may order correction of any
practice at, or the appearance of, the Site. Agency shall indemnify, defend, and hold Participant
harmless from any injury or property damage caused or liability arising out of Agency's exercise
of this right of access. The Agency's rights of access set forth herein shall not restrict or limit
any right of City to inspect the Site or the construction of the improvements thereon.
4.4 Prohibition on Transfer Prior to Release of Use Covenants.
Prior to the Agency recording the Notice of Release of Covenant to Operate and Use
Covenants, Participant shall not Transfer (as that term is defined in Section 1.28) this Agreement
or any of Participant's rights hereunder, or any interest in the Site or in the improvements
thereon, directly or indirectly, voluntarily or by operation of law, except as provided below,
without the prior written approval of Agency, and any such purported Transfer without such
approval shall be null and void. In considering whether it will grant approval to any Transfer by
Participant prior to Agency recording the Notice of Release of Covenant to Operate and Use
Covenants, which Transfer requires Agency approval, Agency shall consider factors such as (i)
the financial strength and capability of the proposed transferee to perform Participant's
hereunder; (ii) the proposed transferee's experience and expertise in the planning, financing,
development, ownership, and operation of similar projects; and (iii) whether the Transfer is for
the purpose of financing the construction or development of the Project. A Transfer for
financing purposes shall not be approved by the Agency if the financing exceeds eighty percent
(80%) of the construction or development costs of the Project or if the loan documents do not
state that the loan proceeds must be used for the construction or development of the Project.
In the absence of specific written agreement by Agency, prior to the Agency recording
the Notice of Release of Covenant to Operate and Use Covenants no Transfer by Participant of
all or any portion of its interest in the Site or this Agreement (including, without limitation, a
Transfer not requiring Agency approval hereunder) shall be deemed to relieve Participant or any
successor party from any obligations under this Agreement. In addition, no attempted Transfer
of any of Participant's obligations hereunder shall be effective unless and until the Participant
and the successor party executes and delivers to Agency an assignment and assumption
agreement in a form approved by the Agency's Executive Director and Agency's legal counsel.
4.5 Relocation Assistance.
Participant expressly and knowingly waives any claims that it or any entities owned or
controlled by it, and its successors and assigns, may have to receive relocation assistance or
benefits arising out of the work to be performed pursuant to this Agreement. Participant shall
indemnify, defend, and hold Agency/City and Agency/City Personnel harmless from and against
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any claims for relocation assistance or benefits brought by any third party arising out of or
related to this Agreement.
4.6 Indemnification.
Commencing with the Effective Date and until such time as the Agency has recorded the
Notice of Release of Covenant to Operate and Use Covenants, Participant shall indemnify,
defend, and hold the Agency/City and Agency/City Personnel harmless from and against all
liability, loss, damage, cost or expenses (including reasonable attorneys' fees, expert witness
fees, and court costs) arising from or as a result of the death of any person or any accident,
injury, loss, or damage whatsoever caused to any person or to the property of any person which
shall occur on, abutting, or adjacent to the Site and which shall be directly or indirectly caused
by the acts done thereon or any errors or omissions of Participant or its agents, servants,
employees, invitees, or contractors. Participant shall not be responsible for (and such indemnity
shall not apply to) any acts, errors, or omissions of the Agency or the City or of Agency/City
Personnel acting in their official capacity. Agency/City and Agency/City Personnel shall not be
responsible for any acts, errors or omissions of any person or entity except Agency/City and
Agency/City Personnel acting in an official capacity, subject to any and all statutory and other
immunities. The foregoing indemnity by Participant shall survive the recordation of the Notice
of Release of Covenant to Operate and Use Covenants as to any acts or omissions accruing on or
before such date of recordation.
4.7 Physical and Environmental Condition of the Site.
Agency shall have no responsibility or obligation with respect to the physical or
environmental condition of the Site. Participant shall indemnify, defend, and hold Agency and
City harmless from and against any and all claims, suits, penalties, expenses, losses, damages,
attorney's fees, judgments, or any other action or damage of any kind or nature arising out of or
related to the physical or environmental condition of the Site, including but not limited to the
geological, hydrological, seismological conditions, soils conditions, or the presence of any
Hazardous Material. Notwithstanding any other provision of this Agreement, Participant's
indemnification as set forth in this Section, as well as all provisions of this Section, shall survive
the termination of this Agreement and shall continue in perpetuity.
SECTION 5. USE OF THE SITE.
5.1 Covenant to Operate and Use Covenants.
Participant acknowledges that a material consideration for Agency's entering into this
Agreement is to assist in the generation of additional sales and property tax revenues to the City
and Agency from the operation of a Store on the Site and the increased valuation of said property
and to assist in revitalization of the Project Area and the immediate neighborhood in which the
Project is located. Accordingly, Participant covenants and agrees, which covenants shall run
with the land and bind all successors, assigns, and every successor in interest of Participant (to
the extent of Participant's interest) that, commencing on the Effective Date and continuing until
the date that is the fifth (5th) anniversary of the Effective Date (the "Use Covenants Period"),
that:
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(i) the use of the Site shall be restricted to the operation of the Store;
(ii) the Site shall be used for no other purposes than as set forth in clause (i)
immediately above without the prior written approval of Agency;
(iii) the Store shall be operated on a continuous and uninterrupted basis and
shall be open to the public at least between the hours of 10 a.m. and 6 p.m., 7 days per week,
excluding holidays ("Covenant to Operate");
(iv) while acknowledging that the store is a price discounter, the Store shall be
operated at the same or higher level of quality as similar department stores in Southern
California, such as Robinson's-May, Harris' or Gottschalk's; and
(v) Participant shall exercise its best efforts to promote and market the Store
to the community and surrounding area in order to attract customers and maintain and enhance
the long-term viability of the Store.
All of the foregoing clauses (i) through (v), both inclusive, and the Agreement Containing
Covenants Affecting Real Property at Exhibit "F" are referred to as the"Covenant to Operate and
Use Covenants." Within the time set forth in the Schedule of Performance, Participant shall
execute, and the Agency shall record the Agreement Containing Covenants Affecting Real
Property in the form set forth at Exhibit "F" evidencing the Covenant to Operate and Use
Covenants.
Within five (5) business days after Participant's satisfaction of the Covenant to Operate and Use
Covenants, and as more specifically set forth in the Schedule of Performance, Agency shall issue
its Notice of Release of Covenant to Operate and Use Covenants upon written request therefor
from Participant. The Notice of Release of Covenant to Operate and Use Covenants shall be in
the form shown of Exhibit "I" and shall be recorded in the office of the Riverside County
Recorder.
In the event that Participant, or any successor or assign, violates any of the Use
Covenants set forth in this Section 5.1 during the Use Covenants Period, and Participant fails to
cure such default after the notice and times set forth at Section 6.1, Agency may terminate this
Agreement and the Promissory Note pursuant to Section 4.1.2.
5.2 Agency Beneficiary of Participant Covenants
Agency is deemed a beneficiary of the terms and provisions of this Agreement and for
and in its own right for the purposes of protecting the interests of the community in whose favor
and for whose benefit the covenants running with the land have been provided. The covenants in
favor of Agency shall run without regard to whether Agency has been, remains or is an owner of
any land or interest therein in the Site or in the Redevelopment Project Area and shall be
effective as both covenants and equitable servitudes against the Site. Agency shall have the
right, if any of the covenants set forth in this Agreement which are provided for its benefit are
breached, to exercise all rights and remedies and to maintain all actions or suits at law or in
equity or other proper proceedings to enforce the obligations under this Agreement. With the
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exception of the City, no other person or entity shall have any right to enforce the terms of this
Agreement under a theory of third party beneficiary or otherwise.
5.3 Obligation to Refrain from Discrimination.
There shall be no discrimination against, or segregation of, any persons, or group of
persons, on account of race, color, creed, religion, sex, marital status, ancestry, or national origin
in the enjoyment of the Site, nor shall Participant itself, or any person claiming under or through
it, establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants,
sublessees, or vendees of the Site or any portion thereof. The foregoing covenants shall run with
the land and shall remain in effect in perpetuity.
5.4 Form of Nondiscrimination and Nonsegregation Clauses
Participant, and all persons claiming under or through it, shall refrain from restricting the
rental, sale, or lease of any portion of the Site, or contracts relating to the Site, on the basis of
race, color, creed, religion, sex, marital status, ancestry, or national origin of any person. All
such deeds, leases or contracts shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
5.4.1 In deeds:
"The grantee herein covenants by and for himself, his heirs, executors, administrators,
and assigns, and all persons claiming under or through them, that there shall be no discrimination
against or segregation of any person or group of persons on account of race, color, creed,
religion, sex, marital status, ancestry, or national origin in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the land herein conveyed, nor shall the grantee himself, or
any persons claiming under or through him, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or occupancy
of tenants, lessees, subtenants, sublessees, or vendees in the land herein conveyed. The
foregoing covenants shall run with the land."
5.4.2 In leases:
"The lessee herein covenants by and for himself, his heirs, executors, administrators, and
assigns, and all persons claiming under or through him, and this lease is made and accepted upon
and subject to the following conditions:
That there shall be no discrimination against or segregation of any person or group of
persons on account of race, color, creed, religion, sex, marital status, ancestry, or national origin
in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the land herein
leased, nor shall the lessee himself, or any person claiming under or through him, establish or
permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or
vendees in the land herein leased."
5.4.3 In contracts:
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"There shall be no discrimination against or segregation of any persons or group of
persons on account of race, color, creed, religion, sex, marital status, ancestry, or national origin
in the sale, lease, transfer, use, occupancy, tenure, or enjoyment of land, nor shall the transferee
himself, or any person claiming under or through him, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location, number, use,
or occupancy of tenants, lessees, subtenants, sublessees, or vendees of land."
SECTION 6. DEFAULTS AND REMEDIES.
6.1 Participant Defaults.
The occurrence of any one or more of the following events shall constitute an event of
default by Participant hereunder if, after receiving written notice from Agency as provided in
Section 6.3 in compliance with Section 7.4 below identifying such event, Participant fails to cure
said event within ten (10) days if such event is a monetary default or Participant fails to cure said
default within sixty (60) days, if such event is a non-monetary default; provided that if such non-
monetary default is not capable of being cured within sixty (60) days, Participant commences to
cure said event within sixty (60) days and diligently and in good faith continues to cure the event
of default:
(a) Participant fails to observe or perform any term or provision of this
Agreement within the time set forth in this Agreement;
(b) Participant fails to observe or perform any term or provision of the
Agreement Containing Covenants Affecting Real Property within the time required;
(c) Participant makes or delivers to Agency any statement, report, financial
statement, or certificate that is not true or correct in any material respect;
(d) Participant applies for the appointment of a receiver, trustee, or custodian
for any of Participant's assets;
(e) Participant files a petition under any section or chapter of the Bankruptcy
Code or any similar law or regulation;
(f) Participant makes a general assignment for the benefit of his creditors;
(g) A petition under any section or chapter of the Bankruptcy Code or any
similar law or regulation is filed against Participant, and such injunction, restraint, or
petition is not dismissed within thirty(30) days after the entry or filing thereof,
(h) Participant is in violation of any of the Covenant to Operate and Use
Covenants;
(i) Participant is enjoined, restrained, or in any way prevented by court order
from conducting all or any material part of his business affairs;
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0) Participant becomes insolvent or admits in writing his inability to pay its
debts as they mature;
(k) A notice of lien, levy, or assessment is filed of record with respect to all or
any of Participant assets by the United States, or any department, agency or
instrumentality thereof, or by any state, county, municipal, or other governmental agency,
or if any taxes or debts owing at any time hereafter to any one of these becomes a lien or
encumbrance upon any of Participant's assets or the Site and the same is not released
within thirty (30) days after the same becomes a lien or encumbrance; provided that
Participant shall have the right to contest in good faith and by appropriate proceedings
any such lien, levy or assessment if Participant provides Agency with a bond or
indemnity satisfactory to Agency assuring the payment of such lien, levy, or assessment;
or
(1) Any of Participant representations and warranties set forth in Section 3 of
this Agreement is untrue or materially misleading.
6.2 Agency Defaults.
The occurrence of any one or more of the following events shall constitute an event of
default by Agency hereunder if, after receiving written notice from Participant as provided in
Section 7.4 below identifying such event, Agency fails to cure said event within ten (10) days if
such event is a monetary default or Agency fails to cure said default within sixty (60) days, if
such event is a non-monetary default; provided that if such non-monetary default is not capable
of being cured within sixty (60) days, Agency commences to cure said event within thirty (30)
days and diligently and in good faith continues to cure the event of default:
(a) Agency fails to observe or perform any term or provision of this
Agreement within the time set forth in this Agreement or the Promissory Note;
(b) Agency makes or delivers to Participant any statement, report, or
certificate that is not true or correct in any material respect; or
(c) Any of Agency's representations and warranties set forth in Section 3 of
this Agreement is untrue or materially misleading.
6.3 Notice of Default.
The non-defaulting party shall give written notice of any default under this Section 6 to
the defaulting party, clearly specifying the default. Copies of any notice of default given to the
defaulting party shall also be given to any permitted lender requesting such notice. Any failure
or delay in giving such notice or in asserting any of either party's rights and remedies as to any
default shall not constitute a waiver of any default, nor shall it change the time of default, nor
shall it deprive either party of its rights to institute and maintain any actions or proceedings
which it may deem necessary to protect, assert or enforce any such rights or remedies.
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6.4 Remedies.
In addition to any other rights or remedies set forth in this Section 6.4, either party may
institute legal action to cure, correct, or remedy any default, to recover damages for any default,
or to obtain any other remedy consistent with the purposes of this Agreement. Such legal actions
must be instituted and maintained in the Superior Court of the County of Riverside, State of
California, or in any other appropriate court in that county.
Subject to any applicable cure periods and the general right to notice provided for in this
Agreement, upon a default or breach of this Agreement by one party to this Agreement, the other
party may bring an action for damages proximately caused thereby or for specific performance of
this Agreement or any term or provision hereof. Participant agrees that Agency shall be entitled
to the judicial remedy of specific performance and Participant agrees (subject to its reserved right
to contest whether in fact a default does exist) not to challenge or contest the appropriateness of
such remedy. In this regard, Participant specifically acknowledges that Agency is entering into
this Agreement for the purpose of assisting in the redevelopment of the Site and not for the
purpose of enabling Participant to speculate with land.
6.5 Agency's Right to Terminate.
In the event Participant commits a default hereunder and fails to cure such default within
the time provided in Sections 6.1, Agency may deliver a thirty (30) day written notice of
termination to Participant and, if the applicable default or condition has not been satisfied (or
waived by Agency) within the same 30-day period, this Agreement shall terminate and neither
party shall have any further rights against or liabilities to the other (except Agency reserves its
rights under Section 6.4 if Participant is in default). In the event of a Participant default (that is
not cured within the applicable time period) occurring prior to the first Disbursement Date,
Agency may terminate this Agreement and the Promissory Note pursuant to Section 4.1.2.
6.6 Rights and Remedies are Cumulative.
Except as otherwise expressly stated in this Agreement, the rights and remedies of the
parties hereto 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 remedies for the same default or any other default by another party.
6.7 Cross-Default.
It is the intention of the parties hereto that any default by Participant of this Agreement, or of the
Agreement Containing Covenants Affecting Real Property, shall constitute a default of all of the
other of the foregoing documents.
SECTION 7. GENERAL PROVISIONS.
7.1 Governing Law:Forum.
The laws of the State of California shall govern the interpretation and enforcement of this
Agreement. The Superior Court of the County of Riverside, or such other appropriate court in
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such County, shall have exclusive jurisdiction of any litigation between the parties to this
Agreement, and Participant agrees to submit to the personal jurisdiction of such courts.
7.2 Attorney's Fees.
In the event of litigation between the parties arising out of this Agreement, the prevailing
party shall be entitled to recover its expert witness fees, reasonable attorneys' fees, and other
costs and expenses incurred, including attorneys' fees on appeal and all other reasonable costs
and expenses for investigation of such action, including the conducting of discovery, in addition
to whatever other relief to which it may be entitled.
7.3 Notices, Demands, and Communications Between the Parties.
Formal notices, demands, and communications between Agency and Participant shall be
sufficiently given if. (i) personally delivered; (ii) delivered by reputable delivery service that
provides a receipt showing date and time of delivery; or (iii) delivered by registered or certified
mail, postage prepaid, return receipt requested, to the addresses set forth below:
If to Participant: Wessman Development Corporation
1555 South Palm Canyon Drive, Suite G-106
Palm Springs, CA 92264
Attn: John Wessman
If to Agency: Community Redevelopment Agency of the
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92263
Attn: Executive Director
with copy to: David J. Aleshire, Agency Counsel
Burke Williams & Sorensen, LLP
18301 Von Karman Avenue, Suite 1050
Irvine, CA 92612-1009
All notices personally delivered or delivered by delivery service shall be deemed
effective upon receipt. Mailed notices shall be deemed to be received as of the earlier of actual
receipt by the addressee thereof or the expiration of forty-eight (48) hours after depositing in the
United States Postal System in the manner described in this Section.
7.4 Conflicts of Interest.
No member, official, or employee of Agency shall have any personal interest, direct or
indirect, in this Agreement nor shall any such member, officer, official, employee, agent, or
representative participate in any decision relating to this Agreement which affects his personal
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interests or the interests of any corporation, partnership, or association in which he is, directly or
indirectly, interested.
7.5 Nonliability of Agency/City Personnel.
Agency/City Personnel shall not be personally liable to Participant, or any successor in
interest of Participant, in the event of any default or breach by Agency or for any amount which
may become due to Participant or to its successor, or on any obligations under the terms of this
Agreement.
7.6 Books and Records.
7.6.1 Maintenance of Books and Records.
Participant shall prepare and maintain all books, records and reports necessary to
substantiate Participant's compliance with the terms of this Agreement or reasonably required by
the Agency.
7.6.2 Right to Inspect.
Either party shall have the right, upon not less than seventy-two (72) hours notice, at all
reasonable times, to inspect the books and records of the other party pertaining to the Site as
pertinent to the purposes of this Agreement. Said right of inspection shall not extend to
documents privileged under attorney-client or other such privileges.
7.7 Integration: Amendment
It is understood that there are no oral agreements between the parties hereto affecting this
Agreement and this Agreement supersedes and cancels any and all previous negotiations,
arrangements, agreements and understandings, if any, between the parties, and none shall be
used to interpret this Agreement. This Agreement may be amended at any time by the mutual
consent of the parties by an instrument in writing.
7.8 Titles and Captions.
Titles and captions are for convenience only and shall not constitute a portion of this
Agreement.
7.9 No Third Parties Benefited.
Excepting only City's rights under Sections 4.2, 4.5, 4.6, 4.7, 5.2, and 7.7, and
notwithstanding any other provision of this Agreement to the contrary, this Agreement shall
create no other third party beneficiary rights or any other rights in favor of any persons, firms or
corporations. This Agreement is for the sole use and benefit of the parties hereto and is not for
the use or benefit of any other person or entity.
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7.10 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the authorship
of this Agreement or any other rule of construction which might otherwise apply.
7.11 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same instrument.
7.12 Severability.
Wherever possible, each provision of this Agreement shall be interpreted in such a
manner as to be effective and valid under applicable law. If, however, any provision of this
Agreement shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
7.13 Extension of Times of Performance.
Time is of the essence of the performance of this Agreement. Notwithstanding the
foregoing, in addition to the specific provisions of this Agreement, performance by either party
hereunder shall not be deemed to be in default during an event of Force Majeure. An extension
of time for an event of Force Majeure shall be limited to the period of such event, and shall
commence to run from the time of the commencement of the cause, provided notice by the party
claiming such extension is sent to the other party within ten (10) days of the commencement of
the cause. In the event of such delay, the party delayed shall continue to exercise reasonable
diligence to minimize the period of delay. Times of performance under this Agreement may also
be extended by mutual written agreement by Agency and Participant. The Executive Director
shall have the authority on behalf of Agency to approve extensions of time not to exceed a
cumulative total of one (1)year.
[end - signature page and exhibits attached]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the date first written above (the"Effective Date").
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM
SPRINGS, a public body, corporate and politic
By:
Chairman
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
RUTAN& TUCKER, LLP
By:
Agency Counsel
JOHN WESSMAN, dba WESSMAN
DEVELOPMENT COMPANY
By:
John Wessman
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EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
6271014084-0006 Exhibit"A"
140205 01 a03120/01 Legal Description of Site
t k4 t4 `aftx r
EXHIBIT "B"
SITE MAP
[SEE FOLLOWING PAGE]
627/014094-0006 Exhibit"B"
140205.01.03/20/01 Site Map
C 44 A -�C.
[REPLACE THIS PAGE WITH SITE MAP]
627/014034-"6
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EXHIBIT "C"
SCHEDULE OF PERFORMANCE
Item of Performance Date
1. Participant completes construction of Project on Completed before Effective Date of
the Site and obtains certificate of occupancy from Agreement.
City.
2. Participant opens Store for business to the public. Completed before Effective Date of
Agreement.
3. Participant executes and submits the Agreement to No later than April 15, 2001.
Agency.
4. Agency Board approves Agreement and authorizes Effective April 21, 2001.
execution of Agreement by Agency Chairman.
5. Participant executes and delivers to Agency the No later than five (5) days after
Agreement Containing Covenants Affecting Real Agency approval of Agreement.
Property and causes Guarantor to execute and
deliver the Guaranty to Agency.
6. Agency records Agreement Containing Covenants Within five (5) days of Agency's
Affecting Real Property. receipt of the executed Agreement
Containing Covenants Affecting Real
Property.
7. Agency executes and delivers to Participant the Within five (5) days of Agency's
Promissory Note receipt of the executed Agreement
Containing Covenants Affecting Real
Property.
8. Participant submits certificates of insurance to No later than five (5) days after the
Agency. Effective Date of Agreement.
9. Agency disburses Agency Assistance to Upon satisfaction by Participant, or
Participant in accordance with the terms of the waiver by Agency, of all the Agency's
Agreement. Conditions to Funding, as set forth in
Section 4.1.1 and the Promissory Note.
627/0140840006 Exhibit"C"
140205.01 a03/20/O1 Schedule of Performance CK,4 Awa4
Item of Performance Date
10. Participant operates Store pursuant to the Beginning November 2, 2001 and
Agreement and Agreement Containing Covenants. continuing at least until the fifth (5th)
anniversary of the Effective Date, as
defined at Section 4.1.
11. Agency issues and records Notice of Release of Pursuant to Section 5.1 of the
Use Covenants if Participant is entitled to receipt, Agreement, but in no event earlier
upon written request from Participant therefor. than five (5)years after the
Disbursement Date.
It is understood that this Schedule of Performance is subject to all of the terms and
conditions of the text of the Agreement. The summary of the items performance in this Schedule
of Performance is not intended to supersede or modify the more complete description in the text;
in the event of any conflict or inconsistency between this Schedule of Performance and the text
of the Agreement, the text shall govern. The time periods set forth in this Schedule of
Performance may be amended only by written agreement signed by both the Participant and the
Agency. The Executive Director of Agency shall have the authority to approve extensions of
time without action of the Board of Directors of Agency not to exceed a cumulative total of 180
days.
627/014084-0006
140205 01 a03/20/01
EXHIBIT"D"
PROMISSORY NOTE
February 2001 ("Note Date") Loan Amount: up to $100,000.00
FOR VALUE RECEIVED, the undersigned, THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic, hereinafter
referred to as "Agency," promises to pay to JOHN WESSMAN, dba WESSMAN
DEVELOPMENT COMPANY, hereinafter referred to as "Participant" so much principal as may
be outstanding in accordance with the terms of this Note, not exceeding ONE HUNDRED
THOUSAND DOLLARS AND NO CENTS ($100,000.00), plus accrued interest on the unpaid
principal, plus such other costs, charges, and fees which may be owing from time to time, all
subject to the terms, conditions, and provisions hereinafter set forth.
Reference is made to:
A. The Owner Participation Agreement by and between Agency and Participant,
dated on or about April 2001 ("OPA"), which provides, among other things, for the payment
by the Agency to Participant pursuant to the terms of this Note in consideration for the Use
Covenants upon that certain real property consisting of approximately 38,000 square feet owned
by Participant and located in the City of Palm Springs, California and within the City's Merged
Project Area No. 1, which property is more particularly described in the legal description
attached as Exhibit "A" to the OPA ("Site"). The Use Covenants are set forth in the Agreement
Containing Covenants Affecting Real Property ("Agreement Containing Covenants") by and
between the Agency and Participant recorded in the Official Records of Riverside County,
California and dated April 2001. The OPA is incorporated herein by reference as though
fully set forth herein. All defined terms used in this Note shall have the same meaning as set
forth in the OPA unless otherwise stated.
B. The Redevelopment Plan for the Merged Project Area No. 1 ("Plan") is
incorporated herein by reference as though fully set forth.
1. Principal Amount; Disbursement Procedure.
a. The principal amount payable by the Agency to Participant in consideration for the Use
Covenants pursuant to the Agreement Containing Covenants is ONE HUNDRED THOUSAND
DOLLARS ($100,000.00) ("Agency Assistance"), which Agency shall disburse to Participant as
set forth below. No interest shall accrue on the outstanding principal balance but interest shall
accrue as set forth in Paragraph _ below in the event of an Agency default. The Agency
Assistance shall be reduced pursuant to the terms set forth in Paragraph below.
b. As of fulfillment of all of Agency's Conditions to Funding as set forth in Section 4.1.2 of
the OPA, and upon execution of this Note, Agency shall disburse one fifth (115) of the Agency
Assistance ("Yearly Assistance Payment") upon presentation to the Agency Executive Director
by _ of each year between the years 2002 and 2006, of statements showing all sales
tax revenue received by the City generated from the Site during the calendar year immediately
627/014084-0006 Notice of Release of Covenant to Operate
140205.01 a03/28/01 Page 1 of 9
preceding the date such statement is submitted to the City. Provided Participant timely submits
to Agency such statements of sales tax revenues, Agency shall disburse the Yearly Assistance
Payment by the Disbursement Dates, which shall be no later than July of each year between
and including the years 2002 through 2006.
C. Agency shall offset against each Yearly Assistance Payment a percentage of the Yearly
Assistance Payment equal to the percentage shortfall of sales tax revenue for each year of the
term of this Note below Sixty Thousand Dollars ($60,000.00). Participant shall not be entitled to
receive any Yearly Assistance Payment exceeding Twenty Thousand and 00/100 Dollars
($20,000.00), irrespective of whether the sales tax revenue exceeds Sixty Thousand 00/100
Dollars for any given year of the term of this Note. The following examples are provided to
illustrate the operation of the foregoing provisions:
Example No.1: Sales tax revenues for the 2001 year equal $54,000 (or 90% of the
1% sales tax on $6,000,000 in sales). Participant shall receive a
Yearly Assistance Payment by the Disbursement Date in 2002 of
$18,000 (or 90% of the $20,000 Yearly Assistance Payment.)
Example No. 2: Sales tax revenues for the 2002 year equal $66,000 (or 110% of the
1% sales tax on $6,000,000 in sales). Participant shall receive a
Yearly Assistance Payment by the Disbursement Date in 2002 of
$20,000. Participant shall not be entitled to receive any amount
above the $20,000 Yearly Assistance Payment, regardless of the
amount of Yearly Assistance Payment paid for the prior year.
2. Term of Note. The term of this Note shall be five (5) years from the date of the Effective
Date, as that term is defined in the OPA.
Agency shall have the right to prepay all or any portion of this Note at any time without penalty.
3. Default. Agency shall have the right to offset against any Yearly Assistance Payment
any amount resulting from Participant's default under the OPA or the Agreement Containing
Covenants. In the event of any breach or default of the Use Covenants under the Agreement
Containing Covenants, Agency shall be excused from making any and all payments under this
Note, Agency may deliver a notice of default to Participant, which notice of default shall effect a
cancellation and termination of this Note upon delivery of such notice of default to Participant.
Upon delivery of such notice of default, Agency shall have no further obligation to make any
payment under this Note, and Participant shall cancel this Note and return the original hereof to
Agency within five (5) days of its receipt of such notice of default. In the event that the Store
ceases operation as a result of a casualty which affects performance of the Use Covenants, all
obligations of Agency to make the Yearly Assistance Payment under this Note shall cease until
operation of the Store on the Site has resumed.
4. No Payments of Sales Tax by City or A ency. It is agreed and acknowledged by
Participant that Agency shall not pay to Participant any portion of the sales tax revenue received
by the City and that Participant is in no way entitled to receive any sales tax form City or the
Agency. The receipt by the City of sales tax generated from the Site is being utilized in this Note
627/0140940006 Notice of Release of Covenant to Operate
140205 01.03/28/01 Page 2/off 9
A
■ fA II w9L/
only for the purposes of calculating the amount of Yearly Assistance Payment to Participant
under this Note.
5. Additional Terms.
a. All payment shall be made in lawful money of the United States. Payments shall be
made to Participant at the address set forth in Paragraph _ herein or at such other address as
Participant or the holder of this Note may direct pursuant to notice delivered to Agency in
accordance with Paragraph
b. In the event of a breach or default under this Note by Agency or the failure to make any
payment hereunder, Participant shall not be entitled to accelerate the balance due under this
Note, but shall be limited to an action to compel payment of any delinquent installment only.
6. Nonassignability and Nonassumability. This Note shall not be assignable or assumable
without the prior, express, written consent of Agency's Executive Director.
7. Notices. Any notices required by law or this Agreement shall be given either by (i)
personal service, (ii) delivery by reputable document delivery service such as Federal Express
that provides a receipt showing date and time of delivery, or (iii) mailing in the United States
mail, certified mail, postage prepaid, return receipt requested.
Notices to Participant shall be addressed to:
Wessman Development Company
1555 South Palm Canyon Drive, Suite G-106
Palm Springs, CA 92264
Attn: John Wessman
Notices to Agency shall be addressed to:
Community Redevelopment Agency of the City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92263
Attn: Executive Director
Notices personally delivered or delivered by document delivery service shall be deemed effective
upon receipt. Notices mailed shall be deemed effective on the second business day following
deposit in the United States mail. Either party may designate that notices be sent to other or
additional addresses by complying with the requirements of this section.
8. Liti ag tion. This Note shall be governed by and construed under the laws of the State of
California. The parties agree that in any litigation between the parties arising out of this Note,
the Municipal and Superior Courts of the State of California in and for the County of san
Bernardino shall have exclusive jurisdiction. The prevailing party in any litigation between the
parties arising out of or connected to this Note, in addition to whatever other relief to which the
prevailing party is entitled, shall also be entitled to reasonable attorney's fees, including fees and
costs for discovery, and any fees and costs for appeal. In the event of such legal action, service
627/014084-0006 Notice of Release of Covenant to Operate
140205.01.03/20/01 Page 3 of 9
C64A R4 -3z
of process on Agency shall be made in such manner as provided by law for service on a
California public entity; service of process on Participant shall be made in such manner as may
be provided for by law, and shall be valid whether made within or without the State of
California.
9. Waiver. No waiver of any breach, default, or failure of condition under the terms of this
Note, or the obligations secured hereby, shall be implied from any failure of either party to take,
or any delay by such party in taking, action with respect to such breach, default, or failure from
any previous waiver or any similar or unrelated breach, default, or failure; and a waiver of any
term of this Note must be made in writing and shall be limited to the express written terms of
such waiver.
10. Time of Essence. Time is of the essence in this Note.
11. Severability. In the event that any term or provision of this Note is held to be
unenforceable, the remainder of this Note shall remain in full force and effect to the fullest extent
without inclusion of the unenforceable term or provision.
12. Interpretation. In the event of any conflict between this Note and the OPA, this Note
shall apply. The terms of this Note shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the authorship
of this Note or any other rule of construction which might otherwise apply. The paragraph
headings are for purposes of convenience only, and shall not be construed to limit or extend the
meaning of this Note.
IN WITNESS WHEREOF, Agency has executed this Note as of the Note Date.
"Agency"
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM
SPRINGS, a public body, corporate and politic
By:
Chairman
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
RUTAN& TUCKER, LLP
By:
Agency Counsel
627/0140640006 Notice of Release of Covenant to Operate
140205.01 eo3/20/01 Page 4 of 9
C N A�-33
STATE OF CALIFORNIA )
) ss.
COUNTY OF RIVERSIDE )
On 2000, before me, personally appeared
personally known to me (or 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 the 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.
WITNESS my hand and official seal.
(SEAL)
627/014084-0006 Notice of Release of Covenant to Operate
14020501
.03/20101 Page 5 of 9
AAA A 3V
EXHIBIT "E"
NOTICE OF RELEASE OF COVENANT TO OPERATE AND USE/MAINTENANCE
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
Community Redevelopment Agency
of the City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92263
Attn: City Clerk
(Space Above Line for Recorder's Use)
(Exempt From Recording Fee Per Gov. Code§6103)
[Record as Partial Release of Agreement
NOTICE OF RELEASE OF COVENANT TO OPERATE AND USE COVENANTS
WHEREAS, JOHN WESSMAN, dba WESSMAN DEVELOPMENT COPRORATION,
a California corporation ("Participant") is the owner of a fee interest in that certain real property
in the City of Palm Spring, County of Riverside, State of California, legally described in
Attachment No. 1 hereto (the"Site"); and
WHEREAS, by an Owner Participation Agreement (hereinafter referred to as the "OPA")
dated as of February _, 2001, by and between Participant and the Community Redevelopment
Agency of the City of Palm Springs, a public body, corporate and politic (`Agency"), Participant
has opened the Store on the Site as required by the OPA; and
WHEREAS, pursuant to Section 5.1 of the Agreement, Participant covenanted to operate
the Store on the Site (as those terms are defined in the OPA) for not less than the period of time
set forth therein, and covenanted to adhere to additional use covenants set forth therein; and
WHEREAS, pursuant to Paragraph 5 of the Agreement Containing Covenants Affecting
Real Property, dated on or about February _, 2001 (the "Agreement"), by and between Agency
and Participant, and recorded in the official records of Riverside County on
2001, as Instrument No. , Participant covenanted to operate the Store
on the Site for not less than the period of time set forth in Section 5.1 of the OPA and covenanted
to adhere to additional use covenants set forth in Section 5.1 of the OPA; and
WHEREAS, pursuant to Section 5.1 of the OPA and Paragraph 5 of the Agreement,
promptly after completing performance of the Covenant to Operate and Use Covenants, Agency
shall furnish Participant with a notice releasing Participant from its covenant to operate and the
additional use covenants as set forth in Section 5.1 of the OPA and Paragraph 5 of the
Agreement; and
627/01408"006 Notice of Release of Covenant to Operate
140205.01 a03/20/01 Page 6 of 9
Co A -3s-
WHEREAS, Participant has requested that Agency furnish Participant with this Notice of
Release of Covenant to Operate and Use Covenants;
NOW, THEREFORE:
1. As provided in Section 5.1 of the OPA and Paragraph 5 of the Agreement,
Agency does hereby certify that Participant has satisfied the Covenant to Operate and Use
Covenants and that such covenants are hereby released by Agency in accordance with the terms
of the Agreement.
2. This Notice of Release of Covenant To Operate and Use Covenants shall not
constitute evidence of compliance with or satisfaction of any obligation of Participant to any
holder of a mortgage, or any insurer of a mortgage, securing money loaned to finance
construction work on the Site, or any part thereof. Nothing contained herein shall modify in any
way any other provision of the Agreement.
3. This Notice of Release of Covenants to Operate and Use Covenants shall not
affect any covenants set forth in the Agreement or in the OPA other than the covenants herein
released as set forth in Paragraph 1 above.
4. This Notice of Release of Covenant To Operate and Use Covenants is not a
Notice of Completion as referred to in California Civil Code Section 3093.
5. This Notice of Release of Covenant To Operate and Use Covenants shall be
recorded only against Participant's ownership interest in the Site legally described in Attachment
No. 1 hereto.
IN WITNESS WHEREOF, Agency has executed this Notice of Release of Covenant To
Operate and Use Covenants as of this day of. 2001.
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
By:
Executive Director
[Consent to Recordation on following page]
627/014084-0006 Notice of Release of Covenant to Operate
140205.01.03/20/01 Page 7 of 9
Ca # 4XV
CONSENT TO RECORDATION
WESSMAN DEVELOPMENT CORPORATION, A CALIFORNIA CORPORATION,
OWNER OF THE FEE INTEREST IN THE REAL PROPERTY DESCRIBED IN
ATTACHMENT NO, 1 HERETO ("SITE"), HEREBY CONSENTS TO THE RECORDATION
OF THE FOREGOING NOTICE OF RELEASE OF COVENANT TO OPERATE AND USE
COVENANTS AGAINST THE SITE.
WESSMAN DEVELOPMENT
CORPORATION, a California corporation,
By:
John Wessman, President
By:
Secretary
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
On before me, a notary public, personally appeared
personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
By:
6271014084-0006 Notice of Release of Covenant to Operate
140205.01 a03/20/01 Page 8 of 9
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
On before me, a notary public, personally appeared
personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
By:
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
On before me, a notary public, personally appeared
personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
By:
627/014084-0006 Notice of Release of Covenant to Operate
140205 01 OM NI Page 9 of 9
C #.39
ATTACHMENT NO. 1
LEGAL DESCRIPTION
627/014084.0006 Exhibit"E"
140205.01 a03/20/01 Notice of Release of Covenant to Operate
d" h 41
EXHIBIT"F"
AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
Community Redevelopment Agency
of the City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92263
Attn: City Clerk
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
(Exempt From Recording Fee Per Gov.Code§6103)
AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY
THIS AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY
("Agreement") is executed this _ day of February, 2001, by and between the COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate
and politic (the "Agency"), and WESSMAN DEVELOPMENT CORPORATION, a California
corporation ("Participant"), with reference to the following:
A. Participant is the owner of a fee interest in that certain real property located in the
City of Palm Springs, County of Riverside, State of California, legally described in the attached
Attachment No. 1 (the"Site").
B. The Site is within the Merged Project Area No. 1 (the "Project Area") in the City
of Palm Springs ("City") and is subject to the provisions of the Redevelopment Plan for the
Project Area adopted by the City Council of the City by Ordinance No. 1203 on November 30,
1983, (Redevelopment Plan") and subsequent ordinances 1494 (December 21, 1994), 1576
(December 15, 1999) and 1584 (May 31, 2000),
C. Agency and Participant have entered into an Owner Participation Agreement (the
"OPA'), dated as of February 1 2001, concerning the development and operation of
improvements on the Site, which OPA is incorporated herein by reference and is a public record
available for public inspection at Agency's offices located at 3200 E. Tahquitz Canyon WayPalm
Springs, CA 92263.
D. Except as otherwise set forth herein, all capitalized/defined terms shall have the
same meaning as provided in the OPA.
NOW, THEREFORE, in consideration of the Agency's agreement to perform as more
particularly described in the OPA, and its obligations under the OPA, including the obligation to
provide the Agency Assistance as referenced therein, Participant, on behalf of itself and its
627/0140940006 Agreement Containing Covenants Affecting Real Property
140205.01 a03/20/01 Page 1 of 8
em .4 v+v
successors and assigns, and each successor in interest to the site or any part thereof, hereby
covenants and agrees as follows:
1. Participant acknowledges that a material consideration for Agency's entering into
the OPA and this Agreement is to assist in the generation of additional sales and property tax
revenues to the City and Agency from the operation of the Store on the Site and the increased
valuation of said property and to assist in revitalization of the Project Area and the immediate
neighborhood in which the Project is located. Accordingly, Participant covenants and agrees,
which covenants shall run with the land and bind all successors, assigns, and every successor in
interest of Participant (to the extent of Participant's interest) that, commencing on the Effective
Date, as that term is defined in the OPA, and continuing until the date that is the fifth (5th)
anniversary of the Effective Date (the"Use Covenants Period"), that:
(i) Participant shall operate on a continuous and uninterrupted basis
and shall open to the public the Store, as that term is defined in the OPA, for regular business no
less than 8-hours per day, 7 days per week, excluding holidays, as other department stores in
Southern California ("Covenant to Operate");
(ii) the Site shall be used for no other purposes than as set forth in
clause (i) immediately above without the prior written approval of Agency;
(iii) the Store shall comply with the Covenant to Operate, as that term
is defined at Paragraph 1 herein;
(iv) the Store shall be operated at the same or higher level of quality as
similar department stores in Southern California, such as Robinson's-May, Harris' or
Gottschalk's; and
(v) Participant shall exercise its best efforts to promote and market the
Store to the community and surrounding area in order to attract customers and maintain and
enhance its long-term viability.
(vi) Participant shall maintain all improvements on the Site and all
improvements comprising the Project described in the Government Approvals, as that term is
defined in the OPA in first class condition and repair (and, as to landscaping, in a healthy
condition) and in accordance with the Governmental Approvals and all other applicable laws,
rules, ordinances, orders, and regulations, as the same may from time to time be amended, of all
federal, state, county, municipal, and other governmental agencies and bodies having or claiming
jurisdiction and all their respective departments, bureaus, and officials. In addition, Participant
shall keep the Site free from all graffiti and any accumulation of debris or waste material.
Participant shall make all repairs and replacements necessary to keep the improvements in first
class condition and repair and shall promptly eliminate all graffiti and replace dead and diseased
plants and landscaping with comparable approved materials. In the event that Participant
breaches any of the covenants contained in this subparagraph and fails to cure such default
within a period of five (5) days after written notice from Agency (with respect to landscaping,
graffiti, debris, waste material, and general maintenance) or thirty (30) days after written notice
from Agency (with respect to building improvements), or, in the event that any such cure cannot
627/014084-0006 Agreement Containing Covenants Affecting Real Property
140205.01 a03/20/01 Page 2 of 8
c)4 ,� -��
reasonably be completed within said time period(s), if Participant fails to commence such cure
within said time period(s) or commences the cure but thereafter fails to diligently prosecute such
cure to completion, then Agency, in addition to whatever other remedy it may have at law or in
equity, shall have the right to enter upon the Site and perform or cause to be performed all such
acts and work necessary to cure the default. All of Agency's costs in curing the default
(including a fifteen percent (15%) administrative charge) shall be immediately due and payable
by Participant. Participant agrees that Agency's costs to cure (including the administrative
charge) may be assessed as a lien against the Site as provided for public nuisances, and in this
regard Participant waives any other public notice, hearing, and other procedures that may be
provided for under public nuisance laws and ordinances that are a prerequisite to the assessment
of such a lien.
All of the foregoing clauses (i) through (vi), both inclusive, are referred to as the
"Covenant to Operate and Use Covenants".
The covenants referred to in this Paragraph 1 shall expire on the date of recordation of the
Notice of Release of Covenant to Operate and Use Covenants as referred to in Section 5.1 of the
OPA and Exhibit" " to the OPA.
1. There shall be no discrimination against, or segregation of, any persons, or group
of persons, on account of race, color, creed, religion, sex, marital status, ancestry, or national
origin in the enjoyment of the Site, nor shall Participant itself, or any person claiming under or
through it, establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use, or occupancy of tenants, lessees,
subtenants, sublessees, or vendees of the Site or any portion thereof.
The nondiscrimination covenant contained in this Paragraph 1 shall run with the land and
shall remain in effect in perpetuity.
2. Participant, and all persons claiming under or through it, shall refrain from
restricting the rental, sale, or lease of any portion of the Site, or contracts relating to the Site, on
the basis of race, color, creed, religion, sex, marital status, ancestry, or national origin of any
person. All such deeds, leases or contracts shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and for himself, his heirs,
executors, administrators, and assigns, and all persons claiming under or through them, that there
shall be no discrimination against or segregation of any person or group of persons on account of
race, color, creed, religion, sex, marital status, ancestry, or national origin in the sale, lease,
sublease, transfer, use, occupancy, tenure, or enjoyment of the land herein conveyed, nor shall
the grantee himself, or any persons claiming under or through him, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection, location,
number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the land
herein conveyed. The foregoing covenants shall run with the land."
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140205 01 a03/20/01 Page 3 of 8
C94 A -VA
(b) In leases: "The lessee herein covenants by and for himself, his heirs,
executors, administrators, and assigns, and all persons claiming under or through him, and this
lease is made and accepted upon and subject to the following conditions:
"That there shall be no discrimination against or segregation of any person or
group of persons on account of race, color, creed, religion, sex, marital status,
ancestry, or national origin in the leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of the land herein leased, nor shall the lessee
himself, or any person claiming under or through him, establish or permit any
such practice or practices of discrimination or segregation with reference to the
selection, location, number, use, or occupancy of tenants, lessees, sublessees,
subtenants, or vendees in the land herein leased."
(a) In contracts: "There shall be no discrimination against or segregation of
any persons or group of persons on account of race, color, creed, religion, sex, marital status,
ancestry, or national origin in the sale, lease, transfer, use, occupancy, tenure, or enjoyment of
land, nor shall the transferee himself, or any person claiming under or through him, establish or
permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or
vendees of land."
The nondiscrimination covenants contained in this Paragraph 5 shall run with the land
and shall remain in effect in perpetuity.
3. In addition to any other indemnification in favor of Agency or City or their respective
officers, officials, members, employees, agents, or representatives set forth in the OPA or this
Agreement, Participant (the "Indemnitor") agrees to indemnify, defend, and hold harmless
Agency and City and their respective officers, officials, members, employees, agents, and
representatives (collectively, the "Indemnitee") from and against any and all claims, causes of
action, liabilities, and damages arising out of any acts or omissions of the Indemnitor arising out
of the Indemnitor's performance under the OPA, this Agreement, with respect to the Site. The
Indemnitee shall promptly notify the Indemnitor of the filing of any such action and cooperate
with the Indemnitor in the defense thereof(at no cost to Indemnitee). So long as the Indemnitor
is not in default hereunder, the Indemnitee shall not compromise the defense of such action or
permit a default judgment to be taken against the Indemnitee without the prior written approval
of the Indemnitor, or its successors in interest.
The foregoing indemnity provision shall remain in effect until the date that is ten (10)
years following the date of Agency's issuance of the Notice of Release of Covenant to Operate
and Use Covenants but shall, after such date, be effective as to any claims or actions which
accrued prior to such date or which concerned acts, errors, or omissions that occurred prior to
such date.
4. Participant and its successors and assigns shall remain fully obligated for the payment
of property taxes and assessments in connection with the Site, and shall pay all property taxes
and assessments prior to delinquency. The foregoing shall not prevent or preclude Participant
from properly protesting the amount or payment of any tax or assessment. The covenants
627/014084-0006 Agreement Containing Covenants Affecting Real Property
140205.01 a03/20101 Page 4 of 8
efA d# —"
referred to in this Paragraph 4 shall terminate and be of no further force or effect upon Agency's
issuance of its Notice of Release of Covenant to Operate and Use Covenants for the Project
pursuant to Section 5.1 of the OPA.
5. Participant shall not, whether voluntarily, involuntarily, or by operation of law, and
except as permitted in Section 4.4 of the OPA, Transfer (as that term is defined in Section 1.28
of the OPA) all or any part of Participant's obligations under the OPA or this Agreement or any
rights hereunder or in the Site or in any portion thereof without Agency's prior written approval.
The procedures to be followed in obtaining such approval, the criteria to be utilized by Agency
in determining whether to grant such approval, and certain exceptions to the foregoing
prohibitions and restrictions are set forth in Section 4.4 of the OPA. The covenants referred to in
this Paragraph 5 shall terminate and be of no further force or effect upon Agency's issuance of
its Notice of Release of Covenant to Operate and Use Covenants for the Project pursuant to
Section 5.1 of the OPA.
6. In amplification and not in restriction of the provisions set forth hereinabove, it is
intended and agreed that Agency shall be deemed a beneficiary of the agreements and covenants
provided herein both for and in its own right and also for the purposes of protecting the interests
of the community. All conditions, covenants, and restrictions contained in this Agreement shall
be covenants running with the land, and shall, in any event, and without regard to technical
classification or designation, legal or otherwise, be, to the fullest extent permitted by law and
equity, binding for the benefit and in favor of, and enforceable by Agency, its successors and
assigns, and the City of Palm Springs, its successors and assigns, against Participant, its
successors and assigns, to or of the Site conveyed herein or any portion thereof or any interest
therein, and any party in possession or occupancy of said Site or portion thereof, without regard
to whether Agency is or remains an owner of any land or interest therein to which such
covenants relate. Agency shall have the right, in the event of any breach of any such agreement
or covenant, to exercise all the rights and remedies, and to maintain any action at law or suit in
equity or other proper proceedings to enforce the curing of such breach of agreement or
covenant.
7. The covenants and restrictions contained in this Agreement shall not benefit nor be
enforceable by any owner of any other real property within or outside the Project Area or any
person or entity having any interest in any such other real property.
8. The covenants contained in this Agreement shall be construed as covenants running
with the land and not as conditions which might result in forfeiture of title.
627/0140840006 Agreement Containing Covenants Affecting Real Property
140205.01 a03/20/01 Page 5 of 8
etA .4 - Yv
IN WITNESS WHEREOF, Agency and Participant have caused this instrument to be
executed on their behalf by their respective officers or agents herein duly authorized as of the
date first written above.
Agency:
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM
SPRINGS, a public body, corporate and politic
By:
Chairman
ATTEST:
By:
Secretary
APPROVED AS TO FORM:
RUTAN& TUCKER, LLP
By:
Attorneys for the Agency
Participant:
WES SMAN DEVELOPMENT
CORPORATION, a California corporation,
By:
John Wessman, President
By:
Secretary
627/014084-0006 Agreement Containing Covenants Affecting Real Property
140205.01 a03/20/01 Page 6 of 8
C°�i9 -fps
STATE OF CALIFORNIA )
) ss.
COUNTY OF RIVERSIDE )
On before me, a notary public, personally appeared
personally known to the (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
By:
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
On before me, a notary public, personally appeared
personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
By:
627/014084-0006 Agreement Containing Covenants Affecting Real Property
140205.01 a03120101 Page 7 of 8
%�� y
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
On before me, a notary public, personally appeared
personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
By:
6271014084-0006 Agreement Containing Covenants Affecting Real Property
140205.01 a03/20/O1 Page 8 of 8
Oa-
60 o4w."
ATTACHMENT NO. 1
LEGAL DESCRIPTION OF THE SITE
Exhibit'T"
627/014084-0006 Agreement Containing Covenants AII'ecGng
140205 01 a03/20/01 Real Property
e v A _kv
OWNER PARTICIPATION AGREEMENT
By and Between
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS
and
WESSMAN DEVELOPMENT CORPORATION
627/014084-0006
140205.01.03/20/01 et?A 04llq`q
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS. ................................................................................................ 1
1.1 Agency. ............................................................................................................ 1
1.2 Agency/City and Agency/City Personnel. ......................................................... 2
1.3 Agency's Conditions to Funding. ...................................................................... 2
1.4 Agency Assistance............................................................................................ 2
1.5 Agreement. ....................................................................................................... 2
1.6 Agreement Containing Covenants Affecting Real Property............................... 2
1.7 CEQA............................................................................................................... 2
1.8 City................................................................................................................... 2
1.9 Covenant to Operate. ........................................................................................ 2
1.10 Covenant to Operate and Use Covenants........................................................... 3
1.11 Days. ................................................................................................................ 3
1.12 Disbursement Date(s)........................................................................................ 3
1.13 Effective Date................................................................................................... 3
1.14 Executive Director............................................................................................ 3
1.15 Force Majeure................................................................................................... 3
1.16 Governmental Approvals. ................................................................................. 3
1.17 Governmental Authority. .................................................................................. 4
1.18 Hazardous Material........................................................................................... 4
1.19 Notice of Release of Covenant to Operate and Use Covenants. ......................... 5
1.20 Participant......................................................................................................... 5
1.21 Project. ............................................................................................................. 5
1.22 Promissory Note. .............................................................................................. 5
1.23 Redevelopment Plan. ........................................................................................ 5
1.24 Redevelopment Project Area............................................................................. 6
1.25 Site. .................................................................................................................. 6
1.26 Site Map. .......................................................................................................... 6
1.27 Store................................................................................................................. 6
1.28 Transfer. ........................................................................................................... 6
1.29 Use Covenants Period....................................................................................... 6
SECTION 2. PURPOSE OF THIS AGREEMENT. ............................................................... 7
SECTION 3. REPRESENTATIONS AND WARRANTIES. ................................................. 7
3.1 Participant Representations and Warranties....................................................... 7
3.1.1 Right to Enter into Agreement............................................................... 7
3.1.2 Development of the Site. ....................................................................... 8
3.1.3 Fair Market Value of the Site. ............................................................... 8
3.2 Agency Representations and Warranties. .......................................................... 8
3.3 No Representation or Warranty Concerning Governmental Approvals.............. 8
3.4 No Brokers. ...................................................................................................... 8
627/014084-0006
140205.01 a03/20/01 0)
ekd A~9V
Page
SECTION 4. AGENCY ASSISTANCE................................................................................. 9
4.1 Agency Assistance............................................................................................ 9
4.1.1 Agency's Conditions to Disbursement of the Agency
Assistance. ............................................................................................ 9
4.1.2 Failure of Agency's Conditions; Termination. ....................................... 9
4.1.3 Cost of Construction............................................................................ 10
4.2 Liability; Worker's Compensation; Automobile and Builder's Risk
Insurance. ....................................................................................................... 10
4.2.1 Commercial General Liability Insurance. ............................................ 10
4.2.2 Worker's Compensation Insurance. ..................................................... 10
4.2.3 Automotive Insurance. ........................................................................ 10
4.3 Rights of Access. ............................................................................................ 11
4.4 Prohibition on Transfer Prior to Release of Use Covenants. ............................ 12
4.5 Relocation Assistance. .................................................................................... 12
4.6 Indemnification............................................................................................... 13
4.7 Physical and Environmental Condition of the Site........................................... 13
SECTION 5. USE OF THE SITE......................................................................................... 13
5.1 Covenant to Operate and Use Covenants......................................................... 13
5.2 Agency Beneficiary of Participant Covenants. ................................................ 14
5.3 Obligation to Refrain from Discrimination...................................................... 15
5.4 Form of Nondiscrimination and Nonsegregation Clauses. ............................... 15
5.4.1 In deeds:.............................................................................................. 15
5.4.2 In leases: ............................................................................................. 15
5.4.3 In contracts:......................................................................................... 15
SECTION 6. DEFAULTS AND REMEDIES...................................................................... 16
6.1 Participant Defaults......................................................................................... 16
6.2 Agency Defaults. ............................................................................................ 17
6.3 Notice of Default. ........................................................................................... 17
6.4 Remedies........................................................................................................ 18
6.5 Agency's Right to Terminate. ......................................................................... 18
6.6 Rights and Remedies are Cumulative.............................................................. 18
6.7 Cross-Default.................................................................................................. 18
SECTION 7. GENERAL PROVISIONS.............................................................................. 18
7.1 Governing Law;Forum................................................................................... 18
7.2 Attorney's Fees............................................................................................... 19
7.3 Notices, Demands, and Communications Between the Parties......................... 19
7.4 Conflicts of Interest. ....................................................................................... 19
7.5 Nonliability of Agency/City Personnel............................................................ 20
7.6 Books and Records. ........................................................................................ 20
7.6.1 Maintenance of Books and Records..................................................... 20
7.6.2 Right to Inspect................................................................................... 20
6271014084-0006
140205.01 a03120/01 �ll�
eR? 4 -s/
Pate
7.7 Integration; Amendment. ................................................................................ 20
7.8 Titles and Captions. ........................................................................................ 20
7.9 No Third Parties Benefited.............................................................................. 20
7.10 Interpretation. ................................................................................................. 21
7.11 Counterparts. .................................................................................................. 21
7.12 Severability..................................................................................................... 21
7.13 Extension of Times of Performance. ............................................................... 21
EXHIBITS
EXHIBIT "A" LEGAL DESCRIPTION OF SITE
EXHIBIT "B" SITE MAP
EXHIBIT "C" SCHEDULE OF PERFORMANCE
EXHIBIT "D" PROMISSORYNOTE
EXHIBIT "E" NOTICE OF RELEASE OF COVENANT TO OPERATE AND USE
COVENANTS
EXHIBIT "F" AGREEMENT CONTAINING COVENANTS AFFECTING REAL
PROPERTY
627/014084-0006
140205.01 a03/20/01 �111I
eK# 4 -5 2.
RESOLUTION NO. 1120
OF THE COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF PALM SPRINGS, CALIFORNIA,
APPROVING A DISPOSITION AND DEVELOPMENT
AGREEMENT WITH JOHN WESSMAN, DBA WESSMAN
DEVELOPMENT COMPANY, PROVIDING
REHABILITATION ASSISTANCE IN THE AMOUNT OF
$100,000 FOR PROPERTY IMPROVEMENTS AT A
SHOPPING CENTER AT 1555 SOUTH PALM CANYON
DRIVE, MERGED PROJECT AREA#1
-------------------
WHEREAS, the Community Redevelopment Agency of the City of Palm Springs,
California ("Agency") is constituted under the Community Redevelopment Law (California
Health and Safety Code Section 33000 et. se to carry out the purpose as the
redevelopment in the City of Palm Springs ("the City"); and
WHEREAS, Wessman Development Company has requested Agency financial
assistance in their efforts to re-tenant and upgrade Plaza Del Sol at 1555 South Palm
Canyon Drive, in order to attract a quality national department store to Palm Springs,
make the center a more profitable facility for the owner, the other tenants, and the City,
and increase the level of employment; and
WHEREAS, re-leasing of the anchor tenant space in the center will create additional
sales tax revenue for the City, as well as create additional jobs for residents of the City,
therefore improving the City's ability to provide services to all its residents, as well as
overall living conditions for low and moderate income households in the City; and
WHEREAS, Section 33000 et. seq. of the California Health & Safety Code (CRL), allows
Agencies to assist with the financing of improvements in redevelopment project areas, if
the financing is otherwise unavailable in the private sector; and
WHEREAS, the California Redevelopment Law requires certain findings before the
Agency can enter into this Amendment, as follows:
a) Section 33421.1 - that the City Council find that the provision of such
improvements will effectuate the Redevelopment Plan;
b) Section 33445 -that the City Council find that the improvements benefit
the Project Area; that no other means of financing the improvements are
available; that payment of the funds will assist in eliminating blight, and
that assistance to the project is consistent with the Agency's adopted Five
Year Implementation Plan.
WHEREAS, the Agency has considered the staff report, and all the information,
testimony and evidence provided at its regularly scheduled meeting of April 4, 2001.
NOW, THEREFORE, BE IT RESOLVED by the Community Redevelopment Agency of
the City of Palm Springs as follows:
SECTION 1. The above recitals are true and correct and incorporated herein.
ego A-5 3
Resolution 1120
Page 2
SECTION 2. Pursuant to the California Environmental Quality Act (CEQA), the
Community Redevelopment Agency finds as follows:
a) In connection with the approval of the DDA, the project is
Categorically Exempt because all the work is to occur on
existing facilities and there are no changes in the effects of
the proposed project or the circumstances in which it is
being carried out which require any modification of the
Categorical Exemption.
b) The Agency finds that the Planning Commission adequately
discussed the potential significant environmental effects of
the proposed project (land use, traffic/circulation, parking,
air quality, noise, aesthetics, geology/soils, water quality,
drainage, public utilities, public safety,
archaeological/historic resources and light and glare). The
Community Redevelopment Agency further finds that the
Categorical Exemption reflects its independent judgment.
SECTION 3. The Developer proposed to construct new tenant improvements in
the 37,467 s.f. space now known as Stein Mart to accomplish the
conversion of the space from a vacant grocery store to a quality
department store, including new flooring, walls, mechanical
systems, ceilings, and signage. These improvements are now
constructed.
SECTION 4. The Agency proposes, through this Owner Participation
Agreement, to rebate approximately one-third of the Owner's Net
Annual Shortfall attributed to the redevelopment of the space and
the re-leasing of the space to Stein Mart, to the Owner, in an
amount not to exceed $20,000 per year for a period of five years.
The Owner, in turn, shall demonstrate that he has constructed the
improvements as described in Section 3 of this resolution, at a cost
of at least Seven Hundred Forty-Nine Thousand Dollars
($749,000), and that the Owner has incurred other costs of leasing
to Stein Mart of at least One-Hundred Twelve Thousand Dollars
($112,000). The Owner shall further demonstrate that he has
received an amount equal to $337,870 from Ralphs Grocery
Company as a final payment that terminated their lease. The
Agency shall participate in the cost of the improvements, as
described in Section 3 of this resolution, by rebating annually to
the Owner an amount up to One Hundred Thousand Dollars
($100,000) using tax increment from Merged Project Area #1. The
annual amount rebated for the cost of the improvements shall be
determined by the sales performance of the Stein Mart store,
based on a formula included in the OPA. The agreement shall be
for a period of five (5) years.
SECTION 5. The Agency does hereby find and determine as follows:
(a) The property was originally developed in the 1980's
and was occupied by Ralphs Grocery until the
1990's when it departed; several other grocery
chains have evaluated the site for expansion but A
� djo Rmso7u
Resolution 1120
Page 3
have declined to lease the space for market
reasons.
(b) The OPA effectuates the purposes of the
Community Redevelopment Law by reversing or
alleviating any serious physical, social, and
economic burden of the Community which cannot
reasonably be expected to be reversed or alleviated
by private enterprise acting alone, in that the
assistance will facilitate the redevelopment and
operation of the shopping center by causing the
reconstruction and upgrade of the property and
locating at the property a first class retail tenant, in
order to increase sales tax revenue and attract
additional commercial development within the City
and increase the City's tax base.
(c) The OPA effectuates the purposes of the
Community Redevelopment Law as it is intended to
eliminate blight and promote the health, safety and
general welfare of the people of Palm Springs.
SECTION 6. The proposed project is consistent with the Implementation
Plan for this area, insofar as this project will increase tax
increment and will expand retail opportunities. It will
increase the City's commercial sector by locating a major
retail business in the City, in order to capture a portion of
the significant sales tax leakage that occurs in Palm
Springs.
SECTION 7. Based on foregoing reasons, this OPA is hereby approved
and incorporated herein by this reference.
SECTION 8. The Chairman of the Agency is authorized to execute all
necessary documents, in a form approved by the Agency
Counsel.
ADOPTED this 4th day of April 2001.
AYES: Members Hodges, Jones, Oden and Reller-Spurgin
NOES: None
ABSENT: None
Abstain: Chairman Rleindienst
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
CITY OF PALM SPRINGS, CALIFORNIA
By
Assistant Secretary /�,• / Chairman
REVIEWED &APPROVED YlA/�