HomeMy WebLinkAbout6/20/2001 - STAFF REPORTS (35) DATE: June 20, 2001
TO: City Council
FROM: Director of Planning & Building
AGREEMENT FOR PAYMENT OF IN-LIEU PARKING FEE FOR CHOPHOUSE
RESTAURANT LOCATED AT 262 SOUTH PALM CANYON DRIVE, CBD ZONE,SECTION
15 (CASE NO.3.1928).
RECOMMENDATION:
That the City Council approve the attached Minute Order approving the subject agreement
to allow payment of in-lieu parking fees in the amount of$80,000 over a 2.5 year period.
SUMMARY:
The property owner is proposing an agreement for Payment of In-Lieu Parking Fees. The
total in-lieu parking fee is $110,000. A deposit of$30,000 has been paid and the balance
of$80,000 will be paid in three payments over 2.5 years. The property owner is asking that
Section 1.5 Interest on Parking Fee Balance be deleted in favor of paying the fee in 2.5
years instead of five years. The agreement will be secured by a Letter of Credit or a
Certificate of Deposit.
All in-lieu parking fees are deposited in the Downtown Parking Fund and must be used for
development of parking facilities in the Central Business District.
BACKGROUND:
The property owner, Zachary Franks, has requested payment of in-lieu parking fees
pursuant to an agreement. The project, The Palm Springs Chophouse, was approved by
the Planning Commission on October 11, 2000 and is currently under construction. The
owner of Kaiser Grille will own and operate the restaurant and has a long term lease with
Mr. Franks. The project is required to pay in-lieu parking fees for 55 parking spaces. The
in-lieu parking fee is $2,000 per required parking space. The property owner has paid
$30,000 to date and wishes to pay the $80,000 balance over a 2.5 year period.
Several months ago, at a City Council Study Session, a discussion was held regarding
developing a standard agreement. The attached agreement form was developed based
upon City Council discussion.
The property owner is requesting modifications to three sections. The first is to reduce the
payment period from five years(60 months)to 2.5 years and frequency to three payments.
The first two years' payments of$30,000 will be made with a final $20,000 payment. Staff
supports this proposed modification to the agreement. If approved, a minor adjustment to
Section 1.4 Late Fee will also be required.
The second modification is to delete Section 1.5 Interest on Parking Fee. Deleting this
section would remove payment of simple interest on the balance. Deletion of this provision
afA
Page 2 of 2
is proposed in favor of reducing the length of the payment period. Considering the term of
the agreement and overall parking development program being considered in this block,
staff supports this request.
— A&A;�
Director of POlning and Building
City Manager
ATTACHMENTS:
1. Letter from Mr. Zachary Franks, dated June 04, 2001
2. Agreement for Payment of In-Lieu Parking Fees
3. Minute Order
REVIEWED BY DEn OF FINANCE
�Q,�z
06/04/2001 17:05 5032923815 BAROSS MEDIA PAGE 01
June 4,2001
Pax to-Mr. Doug Evans
Director of Planning
City of Palm Springs'
FaX: 760-322-9360
From Zachary Pranks''"(on the road)
Cell Phone: 808-283-�768 .
E-mail: zfranks®aol.com
Dcar Doug:
It was good to hear your voice over the phone.
Lest week I received an e-mail from Leo Morcus regarding the in lieu parking
fees for the Palm Springs Chop House. Ile told me that I would owe$110,000, $30,000
of which has been paid,for 55 spaces in lieu.
A couple of months back I received from you a proposed agreement regarding the
fees. Unfortunately, I am not traveling with that agreement. However, one thing stood
out: the inclusion of interest for payments made on an installment basis. Back in October
you and I discussed whether interest would be proposed. At that time, I expressed my
view that interest would be undesirable and even onerous.
Though I was udder the impression that the building had grandfathered parking
entitilements, I did not object to paying the parking fee because I knew that the city had
to build a fund for parking somehow, and I wanted to support you in that! All I needed,
having received no income at all from the building for the better part of two years,was
not to pay the parking fee all at once, for which you kindly provided. The other
component which I asked you to consider seriously was no interest. I sought no interest
based on the rationale that I am already making a serious contribution for an entitlement,
which absent vacation by my tenant, I would still be enjoying at very little if any cost. I
felt that I shouldn't be asked to pay interest in order to get back what I already had!
In our meeting,we discussed a five year installment plan. I am prepared to
accelerate that. If I am correct in stating that the outstanding balance is $80,000,I could
fully pay the principal within two and a half years in two payments of$30,000 and one
payment of S20,0% What I am trying to do is meet you half-way by accelerating
delivery of principal into your hands. What I ask in return is no interest. I hope this
suggestion meets with your approval.
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AGREEMENT FOR PAYMENT OF IN-LIEU PARKING FEE
THIS AGREEMENT FOR PAYMENT OF IN-LIEU PARKING FEE ("Agreement") is
entered into this day of , 2001 ("Effective Date"), by and between the
CITY OF PALM SPRINGS, a municipal corporation of the State of California ("City"), and
("Payor").
RECITALS
A. Payor holds ownership or possessory interest to that certain real property in the
City of Palm Springs, State of California located at , Palm Springs,
California and specifically described at Exhibit "A" attached hereto ("Property,,).
B. Payor wishes to develop certain improvements on the Property pursuant to plans
and specifications and related documents approved by City, which improvements trigger the
provisions of Pahn Springs Zoning Ordinance Section 9209.04, requiring that parking facilities
be constructed and installed or in-lieu payments ("Parking Fee") be made to the City to
accommodate the development of the Property.
C. Pursuant to Zoning Ordinance Section 9209.04,Payor wishes to pay City and City
wishes to accept from Payor the Parking Fee for parking facilities applicable to the proposed
development on the Property under the terms of this Agreement.
D. Payor's agreement to pay the Parking Fee pursuant to this Agreement are a
material consideration to City in approving and permitting the development of the Property.
COVENANTS
Based upon the foregoing Recitals which are incorporated herein by reference and in
consideration of City's approving and permitting the development of the Property, Payor agrees
to timely perform all of its obligations as set forth herein.
1. Pavment of Parking Fee.
1.1 Parking Fee.
In consideration for the approvals and permitting of the Property and pursuant to Zoning
Ordinance Section 9209.4, Payor, at Payor's option, shall pay to City, an amount equal to
($_—) ("Parking Fee"). The Parking Fee paid by Payor pursuant to this
Section, represents the total Parking Fee due for the development of the Property pursuant to the
plans and specifications and related documents approved by the City. Payor shall pay the
Parking Fee to City in the method described in Section 1.2 below. Payor shall farther pay any
Administrative Fee pursuant to Section 1.5(e)(i)below.
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1.2 Area of Benefit.
The Parking Fee shall specifically benefit the Property or benefit the area in the vicinity
of the parking facility as determined by the Director of Planning and Building pursuant to
Section 3.38.050 of the Palm Springs Municipal Code ("Area of Benefit"). In determining the
Area of Benefit for the Property, the City shall consider any one or more of the following factors:
(i) accessibility, including proximity and the existence of barriers to accessibility such as
buildings, streets, and similar features, (ii) congestion and other factors affecting the availability
of the parking facility, (iii) demand and the desirability of the shopping area to consumers, (iv)
type of business to be operated at the parcel (v) pedestrian benefits within downtown area (vi)
availability of land for new parking facilities, (vii) proximity of parcel to existing public and
private parking facilities, and(viii) other similar factors.
13 Pavment Method.
Prior to development of the Property and concurrent with Payer's execution of this
Agreement, Payer shall pay to City an initial payment in a form acceptable to City
of ($ ) ("Initial Payment"), representing twenty-five
percent (25%) of the Parking Fee. The balance of the Parking Fee after payment of the Initial
Payment, together with interest upon such balance pursuant to Section 1.4 below (collectively
"Parking Fee Balance") shall be payable to City in sixty (60) equal monthly installments
("Monthly Payment(s)"), prior to the first day of each month until the Parking Fee is paid in full,
subject to the provisions of Section 3 below. At any time during the term of this Agreement,
Payor may pay to City the entire outstanding Parking Fee Balance, plus any late fee under
Section 1.3,without incurring any additional interest obligations under Section 1.4 herein.
1.4 Late Fee.
Should Payer fail to pay any portion of the Monthly Payment within five (5) days after
the first day of any month in which a Monthly Payment is due, Payor shall include with such late
Monthly Payment a late fee payable to City equal to _ %) percent of the Monthly
Payment.
1.5 Interest on Parking Fee Balance.
The Parking Fee Balance payable under Section 1.2 shall include the balance of seventy-
five percent (75%) of the Parking Fee, plus simple interest upon such balance calculated
annually at the rate of eight and one half percent (8.5%), plus any late fee payable pursuant to
Section 1.4.
1.6 Required Security.
Concurrent with Payor's execution of this Agreement, Payor shall furnish to City a letter
of credit or certificate of deposit, as acceptable to City in its sole and absolute discretion, and/or
a lien on the Property (collectively "Security Instruments") satisfying the requirements of the
applicable provisions of this Section 1.5 to secure Payor's faithful performance of its payment
obligations under Section 1.1 above, and as evidenced by the Secured Promissory Note attached
hereto as Exhibit "C" ("Note"). This Agreement shall not be effective for any purpose until such
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Security Instruments are supplied to and approved by City in accordance herewith. The Security
Instruments shall meet the following minimum requirements and otherwise shall be in a form
provided by City or otherwise approved by the City Attorney:
(a) Letter of Credit.
To assure its obligations under this Agreement, Payor shall deliver to City an irrevocable
standby letter of credit in the form attached hereto as Exhibit "B" and incorporated herein by
reference in an amount not less than one hundred percent (100%) of the Parking Fee Balance
("Letter of Credit") issued by a financial institution qualified to transact business in the State of
California, with offices located in the Coachella Valley area, with a rating of A-1 or better by
Standard & Poors or Moody's and otherwise reasonably acceptable to City ("Issuer"). The
attachments to the Letter of Credit shall be in a form acceptable to the City Manager and the City
Attorney. The Letter of Credit shall have an initial date of expiry no earlier than 1,
200 In the event the date of expiry for the Letter of Credit is prior to 1,
200_ Payor shall provide the City, at least thirty (30) days prior to the date of expiry for the
current Letter of Credit, with either (i) written notice from the Issuer of the current Letter of
Credit that the Issuer has extended the date of expiry for the Letter of Credit for a period of not
less than one (1) year or (ii) a replacement Letter of Credit in the form and from an Issuer
satisfying the requirements of this Section with a date of expiry not earlier than one (1)year from
the date of expiry of the expiring Letter of Credit.
City shall have the right to draw upon the Letter of Credit, from time to time, in the event
Payor either (i) fails to advance to City any Monthly Payment pursuant to Section 1.2 above
within twenty (20) days of the date payment is due or (ii) fail to deliver to City an extension of
the current Letter of Credit or a replacement Letter of Credit as described in the preceding
paragraph at least thirty (30) days prior to the expiration of the current Letter of Credit. In the
event the draw upon the Letter of Credit is pursuant to clause (i) of the preceding sentence, the
draw shall be in the amount of the payment requested by City. In the event the draw upon the
Letter of Credit is pursuant to clause (ii), City may draw upon the entire Letter of Credit amount
and the proceeds of the draw shall be deposited by City in a special trust account to be invested
in the Local Agency Investment Fund which is a special fund in the California State Treasury
created under Government Code Section 16429.1 et seq. ("Trust Fund"). Investment earnings on
such proceeds will be deposited into the Trust Fund and become a part thereof. Funds will be
withdrawn from the Trust Fund from time to time to meet the obligations of Issuer pursuant to
Section 1.2 above. At such time as all of the Bonds are redeemed or otherwise satisfied in full,
either the original Letter of Credit will be surrendered to Payor or the remaining balance, if any,
in the Trust Fund will be returned to Payor.
While no action of Payor shall be required in order for City to realize on the Letter of
Credit, Payor agrees to cooperate with City to facilitate City's realization under the Letter of
Credit and to take no action to prevent City from such realization. Notwithstanding the delivery
of the Letter of Credit or the subsequent expiration of the Letter of Credit or any failure by any
Issuer to perform its obligations with respect thereto, Payor shall be personally liable for
performance under this Agreement and for the payment of the sums described in Section 1.2
above.
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(b) Certificate of Dgposit.
As an alternative to the Letter of Credit under Section 1.6(a) above, City, in its sole and
absolute discretion, may accept a certified check or cashier's check payable to City, which City
will use to set up a certificate of deposit ("CD") with a financial institution acceptable to City, of
an amount equal to one hundred percent (100%) of the Parking Fee Balance, plus an amount
sufficient to cover any early withdrawal penalties charged by the financial institution. The CD
shall be subject to the following provisions:
(i) City shall have the right to draw upon the CD in the event Payor
fails to advance to City any Monthly Payment pursuant to Section 1.2 above within twenty (20)
days of the date payment is due. The City shall draw upon the CD after ten (10) days' written
notice of the default delivered from City to Payor and the financial institution wherein the CD is
deposited. The financial institution holding the CD shall distribute the cash as instructed by the
City sufficient to pay City the entire balance of the Parking Fee remaining at the time of such
default.
(ii) The CD shall roll over at any maturity date that occurs prior to the
full payment by Payor of the Parking Fee.
(iii) City shall not be liable for any penalty, loss or forfeiture of interest
which may result from the liquidation of the CD prior to the maturity.
(iv) The interest earned on the CD and all interest earned on that
interest shall be for the sole account of Payor and shall be subject to withdrawal by Payor at any
time without notice to City, provided however, that such withdrawal shall not reduce the amount
of the CD below that required to pay City Parking Fee Balance, as may be reduced by any
payment made by Payor to City pursuant to Section 1.2.
(c) Lien on Property
As an alternative to the Letter of Credit under Sections 1.6(a) or 1.6(b) above, and if
Payor holds an ownership interest in the Property, Payor shall, concurrently with the execution of
this Agreement, execute the Deed of Trust attached hereto as Exhibit "D" in favor of City as a
Security Interest, which shall be a covenant agreement recorded against the Property permitting
enforcement by City of the payment obligation of Payor in an amount equal to one hundred
percent(100%) of the Parking Fee Balance through a lien on the Property. Such lien shall have
sufficient priority to assure payment to City of the payment obligations of Payor under Section
1.3 herein.
(d) General Requirements For All Security Iristiuments
(i) Administrative Fee. Payor shall pay to the City an fee for the
City's administrative and legal costs of processing and collection upon the Parking Fee
("Administrative Fee") equal to two percent (2%) of the Parking Fee. Payor shall pay the
Administrative fee upon the Effective Date.
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(ii) Payments. Payments under any Security Instrument shall be
required to be made in the County of Riverside, State of California (and the Security Instrument
shall so provide).
(iii) Each Security Instrument shall reference Payor's obligations under
this Agreement, shall be irrevocable, and shall include as an additional secured obligation the
responsibility to compensate City for all of City's attorneys' fees and litigation expenses
reasonably incurred in enforcing its rights under the Security Instrument.
(iv) Each Security Instrument shall provide that changes may be made
in this Agreement with the mutual consent of the parties herein without notice to any issuer or
surety and without affecting the obligations under such Security Instrument.
1.7 Payor's Liability.
While no action of Payor shall be required in order for City to realize on its security
under any Security Instrument, Payor agrees to cooperate with City to facilitate City's realization
under any Security Instrument, and to take no action to prevent City from such realization under
any Security Instrument. Notwithstanding the giving of any Security Instrument or the
subsequent expiration of any Security Instrument or any failure by any surety or financial
institution to perform its obligations with respect thereto, Payor shall be personally liable for
performance under this Agreement and shall, within ten (10) days after written demand therefor,
deliver to City such substitute security as City shall require satisfying the requirements in this
Section 1.6.
1.8 Release of Security Instruments.
City shall release the Faithful Performance Security Instruments upon Payor's full
payment of the Parking Fee Balance pursuant to Section 1.2, plus any applicable late fee
pursuant to Section 1.3.
2. Term.
Payor shall pay the Parking Fee within five (5) years from the Effective Date of this
Agreement, except as may be extended by the City in the City's sole and absolute discretion.
3. Sale or Transfer of the Property.
Payor shall not transfer, assign or convey the Property or any of Payor's interests therein
or in the improvements thereon, directly or indirectly, voluntarily or by operation of law, without
the prior written approval of City and the full payment by Payor to City of the outstanding
balance of the Parking Fee Balance under Section 1.2, including any applicable late fee under
Section 1.4 (collectively "Outstanding Balance"). Should Payor fail to pay the Outstanding
Balance to City within ten (10) days of any transfer, City shall be entitled to draw upon the
Security Instrument pursuant to Section 1.5 above. Provided, however, that no City approval
shall be required prior to any transfer by Payor should Payor pay to City the entire Outstanding
Balance prior to such transfer. Any transfer by Payor without consent of City and payment of
the Outstanding Balance shall be null and void.
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4. Time of the Essence.
Time is of the essence of Payor's performance of all of its obligations under this
Agreement.
5. Default.
5.1 Remedies Not Exclusive.
In any case where this Agreement provides a specific remedy to City for a default by
Payor hereunder, such remedy shall be in addition to, and not exclusive of, City's right to pursue
any other administrative, legal, or equitable remedy to which it may be entitled.
5.2 Attorney's Fees and Costs.
In the event Payor fails to perform any obligation under this Agreement, Payor agrees to
pay all costs and expenses incurred by City in securing performance of such obligations,
including costs of suit and reasonable attorney's fees. In the event of any dispute arising out of
Payor's performance of its obligations under this Agreement or under any of the Security
Instruments referenced herein, the prevailing party in such action, in addition to any other relief
which may be granted, shall be entitled to recover its reasonable attorney's fees and costs. Such
attorney's fees and costs shall include fees and costs on any appeal, and in addition a party
entitled to attorney's fees and costs shall be entitled to all other reasonable costs incurred in
investigating such action, taking depositions and discovery, retaining expert witnesses, and all
other necessary and related costs with respect to the litigation. All such fees and costs shall be
deemed to have accrued on commencement of the action and shall be enforceable whether or not
the action is prosecuted to judgment.
6. General Provisions.
6.1 Notice.
Any notice, demand, request, document, consent, approval, or communication either
party desires or is required to give to the other party or any other person shall be in writing and
either served personally or sent by prepaid, first-class mail, in the case of the City, to the City
Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box
2743, Palm Springs, California 92263, and in the case of the Payor, to the person at the address
designated on the execution page of this Agreement. Either party may change its address by
notifying the other party of the change of address in writing. Notice shall be deemed
communicated at the time personally delivered or in seventy-two (72) hours from the time of
mailing if mailed as provided in this Section.
6.2 Internretation.
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.
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6.3 Integration; Amendment.
It is understood that there are no oral agreements between the parties hereto affecting this
Agreement and this Agreement supersedes and cancels any and all previous negotiations,
arrangements, agreements and understandings, if any, between the parties, and none shall be
used to interpret this Agreement. This Agreement may be amended at any time by the mutual
consent of the parties by an instrument in writing.
6.4 Severability.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or
sections contained in this Agreement shall be declared invalid or unenforceable by a valid
judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall
not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this
Agreement which are hereby declared as severable and shall be interpreted to carry out the intent
of the parties hereunder unless the invalid provision is so material that its invalidity deprives
either party of the basic benefit of their bargain or renders this Agreement meaningless.
6.5 Corporate Authority.
The persons executing this Agreement on behalf of the parties hereto warrant that(i) such
party is duly organized and existing, (ii) they are duly authorized to execute and deliver this
Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally
bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not
violate any provision of any other Agreement to which said party is bound.
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IN WITNESS WHEREOF, the parties hereto have executed this Subdivision
Improvement Agreement as of the date first above written.
"CITY"
CITY OF PALM SPRINGS, CALIFORNIA, a
municipal corporation
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
RUTAN&TUCKER
David J. Aleshire
City Attorney
"PAYOR"
a
By:
Name:
Its:
Address:
[END OF SIGNATURES]
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EXHIBIT "A"
DESCRIPTION OF PROPERTY
The Property referenced in this Agreement is that certain real property in the City of
Palm Springs, County of Riverside, State of California, described as follows:
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EXHIBIT "B"
LETTER OF CREDIT
[ISSUER NAME AND ADDRESS]
Date of Issue:
Our Irrevocable Standby Credit:
Date of Expiry:
Place of Expiry: At Our Counters
Applicant:
Beneficiary:
Amount: USD $ U.S. DOLLARS
[ISSUER] hereby establishes in favor of Beneficiary this Irrevocable Standby Letter of
Credit No. available with [ISSUER] by payment of Beneficiary's draft in the form
attached hereto as Exhibit "1" at sight accompanied by a statement from Beneficiary executed by
a person purporting to be an authorized officer or agent of Beneficiary in the form of Exhibit "2"
attached hereto.
Each draft presented hereunder must be accompaied by this original credit for
[ISSUER'S] endorsement thereon of the amount of such draft.
The documents must be forwarded to [ISSUER Name and Address].
[ISSUER] shall have no duty to and shall not investigate into the veracity of any
certification to be given under the terns of this Letter of Credit, but shall be entitled to rely
solely upon receipt of such certification in permitting draws under this Letter of Credit.
Applicant's sole recourse in the event of any false certification by the Beneficiary shall be against
Beneficiary and there shall be no recourse against [ISSUER], provided that [ISSUER] has
complied with its obligations under this Letter of Credit.
This Letter of Credit shall be automatically extended, without amendment, for an
additional period or periods of not less than twelve (12) months and up to (_)
months from the present expiration date. Not less than thirty (30) days prior to any expiration
date, [ISSUER] shall notify Beneficiary in writing that either (i) [ISSUER] or Applicant have
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elected to extend this Letter of Credit and setting forth the new date of expiry or(ii) [ISSUER] or
Applicant has elected not to renew or extend this Letter of Credit for such additional period nor
has Applicant procured a replacement letter of credit. In the event [ISSUER] provides the notice
in clause(ii) above, Beneficiary may draw against this Letter of Credit by presenting its draft and
certification as stated above.
[ISSUER] shall have no duty to and shall not investigate into the veracity of any
certification to be given under the terms of this Letter of Credit, but shall be entitled to rely
solely upon receipt of such certification in permitting draws under this Letter of Credit.
Applicant's sole recourse in the event of any false certification by the Beneficiary shall be against
Beneficiary and there shall be no recourse against [ISSUER], provided that [ISSUER] has
complied with its obligations under this Letter of Credit.
This credit is subject to the Uniform Customs and Practice for Documentary Credits
(1983 Revision), International Chamber of Commerce Publication No. 400, and engages us in
accordance with the terms hereof.
(Authorized Signature of Issuer)
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EXHIBIT "I"
FORM OF ISSUER'S SIGHT DRAFT
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EXHIBIT "2"
EXAMPLES OF CERTIFICATION
To: [ISSUER]
Re: LETTER OF CREDIT NO. dated
The undersigned hereby represents, warrants and certifies as indicated below:
U The Applicant has failed to deliver to Beneficiary the sum of
DOLLARS ($ ) within ten (10) days of the date
due pursuant to the terms of that certain Assessment District 155 Cost Sharing Agreement dated
1996 between Applicant and Beneficiary and Beneficiary is entitled to draw
upon the Letter of Credit in said amount.
(� Applicant or Issuer have elected not to renew the Letter of Credit being drawn
hereby for a period of at least twelve (12) months from the current date of expiry nor has
Applicant obtained a replacement letter of credit and the undersigned is therefore entitled to
drawn upon the entire Letter of Credit by reason thereof.
Dated:
By:
Its:
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EXHIBIT "C"
PROMISSORY NOTE
$ .00 200
Palm Springs, California
FOR VALUE RECEIVED, the undersigned("Maker") promises to pay to the order of the
CITY OF PALM SPRINGS, a California municipal corporation ("City"), at a place designated
by City, the principal sum of and 00/100 Dollars
($ .00), together with interest thereon at eight and one-half percent (8.5%) (the
"Note Rate") per annum commencing on the date this Promissory Note ("Note") is executed and
continuing until the principal is fully repaid. The entire unpaid principal balance and accrued
interest hereunder shall be due and payable pursuant to the terms set forth in the Agreement for
Payment of Parking Fee executed by Maker concurrently with this Note ("Agreement")
commencing on the date hereof, until paid in full. The entire unpaid principal balance and
accrued interest hereunder shall be due and payable on or before the date that is five (5) years
after the date that the Note was executed.
This Note is secured by a Deed of Trust With Assignment of Rents of even date herewith
("Deed of Trust"), encumbering certain real property located in the County of Riverside, State of
California, more particularly described therein ("Collateral"), the Agreement, and any other
instruments, now or hereafter executed by Maker in favor of Payee, which in any manner
constitute additional security for this Note. Alternatively, this Note may be secured by a letter of
credit in the form attached hereto.
1. PAYMENTS.
(a) Maker shall pay principal and interest together in SIXTY (60) equal
installments of DOLLARS ($ ) commencing on the date this
Note is executed, as shown above, and continuing on the first day of each month thereafter, with
a final payment of all remaining unpaid principal, accrued interest and other sums due under this
Note due and payable on (the"Maturity Date").
(b) Interest for the period commencing on the date funds are advanced
hereunder and ending on the last day of the month in which said funds are advanced shall be paid
in advance by deducting the amount due from the funds disbursed at closing. Such interest for
such period shall be calculated on the full amount advanced under this Note.
(c) The amount of each year's interest on the Note will, as it accrues, be
calculated on the basis of a 360-day year comprised of twelve 30-day months. Each payment
made by Maker under this Note will be applied first to accrued but unpaid interest then due, and
then to principal. The early or late date of making a payment under this Note will be disregarded
for purposes of allocating the payment between principal and interest. For this purpose, the
payment will be treated as though made on the date due. The receipt of any check or other item
of payment by City, at its option, shall not be considered a payment on account until such check
or other item of payment is honored when presented for payment at the drawee bank. City may
delay the credit of such payment based upon City's schedule of funds availability.
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(d) Maker shall pay all amounts due under this Note in lawful money of the
United States to City of Palm Springs, 3200 E. Tahquitz Canyon Way, Palm Springs, California
92263 or such other office as may be designated by City from time to time.
2. LATE PAYMENTS.
A late fee shall apply to any late payments as set forth in the Agreement.
3. INTEREST RATE FOLLOWING DEFAULT.
From and after the Maturity Date, or such earlier date as all sums owing on this Note
become due and payable by acceleration or otherwise, all sums owing on this Note (including
accrued and unpaid interest), shall, at the option of City, bear interest from the date the payment
becomes due until Maker pays in full, at five percent (5%) above the Note Rate (the "Default
Rate"). The fact that accrued interest, at the Note Rate, if not paid when due, will accrue interest
at the Default Rate, as hereinabove provided, may result in compounding of interest. In the
event the City is required by law to, or otherwise in it sole discretion determines to, accept cure
of the default resulting in acceleration of this Note and any other breach or default then existing,
the Default Rate shall no longer apply with respect to such default(s) and the principal shall at
such point commence accruing interest at the Note Rate, subject to the provisions of this
Paragraph 3 and the other Loan Documents with respect to any default or breach thereafter
occurring.
4. PREPAYMENT.
This Note may be prepaid in whole or in part at any time without penalty.
5. DEFAULT AND ACCELERATION.
The entire outstanding principal balance under this Note shall become immediately due
and payable without notice or demand upon the occurrence at any time of any of the events listed
below:
(a) Should the Maker default in the payment of principal or interest when due
and payable hereunder or in the performance or observance of the terms, covenants, and
conditions set forth herein, in the Agreement, or in any other instrument securing this Note to be
performed and observed by the Maker, and any such default shall continue for a period of ten
(10) days after the date of such default.
(b) Should the Maker make an assignment for the benefit of creditors, or if a
receiver of Maker's property shall be appointed, or if a petition in bankruptcy or for the
reorganization under any Chapter of any Federal or State Bankruptcy Act or other similar
proceeding under the law for relief of debtors shall be filed by or against Maker, or if any lien of
attachment, execution, lien, or claim of lien be placed against the Collateral and is not cleared
from the record or reasonably bonded against within thirty (30) days after it has been filed
against the Collateral.
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(c) Should Maker sell, contract to sell, transfer, assign, further encumber, or
alienate the Collateral, or any portion thereof, or any interest therein, or be divested of title or
any interest therein in any manner, whether voluntarily or involuntarily, unless such transfer
occurs pursuant to the terms of the Agreement or the Deed of Trust.
If this Note is not paid when due, whether at the Maturity Date or by acceleration, Maker
promises to pay all costs of collection, including, without limitation, reasonable attorneys' fees
and disbursements.
6. MISCELLANEOUS.
(a) Joint and Several Liabilitv: If more than one person or entity is signing
this Note as Maker, their obligations under this Note will be joint and several. As to any Maker
that is a partnership, the obligations of Maker under this Note are the joint and several obligation
of each general partner thereof. Any married person signing this Note agrees that recourse may
be had against community property assets and against his or her separate property for the
satisfaction of all obligations contained herein and in the Agreement described at paragraph 6(b)
herein. With respect to any person executing this Note as a trustee of a revocable trust, the
liability of said person shall not be limited to said person's interest in such trust or any trust
property, and City shall have full and immediate recourse to any and all property of said person
in his or her individual capacity for any and all obligations of said person in his or her trust
capacity.
(b) Agreement for Payment of Sewer Charges: This Note has been entered
into pursuant to the oral agreement between City and Maker for the payment of charges imposed
upon by City pursuant to Palm Springs Municipal Code Section 15.24.010.
(c) Governing Law: This Note is governed by the laws of the State of
California. Maker and each other person or entity jointly liable under this Note hereby consent
to the jurisdiction of any competent court within the State of California and further consent to
service of process by any means authorized by California law.
(d) Waivers: Maker hereby waives presentment; demand; notice of dishonor;
notice of default or delinquency; notice of acceleration; notice of nonpayment; notice of costs,
expenses or losses and interest thereon; and notice of interest on interest and late charges.
(e) Delay in Enforcement: If City delays in exercising or fails to exercise any
of its rights under this Note or any other, that delay or failure shall not constitute a waiver of any
of City's rights, or of any breach, default or failure of condition of or under this Note or the
Agreement described at paragraph 6(b) herein. No waiver by City of any of its rights, or of any
such breach, default or failure of condition, shall be effective unless the waiver is expressly
stated in a writing signed by City. Maker hereby waives the right to assert the defense of any
statute of limitations to any debt or obligation evidenced by this Note or the Agreement
described at paragraph 6(b)herein.
(f) Assignment: This Note inures to and binds the heirs, legal representatives,
successors and assigns of Maker and City; provided, however, that Maker may not assign this
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Note or any right to funds advanced or to be advanced hereunder, or assign or delegate any of its
rights or obligations,without the prior written consent of City in each instance.
(g) Recovery of City's Costs: If any amounts owing under this Note are not
paid when due, Maker shall pay all costs and expenses, including reasonable attorneys' fees,
incurred by City in the collection or enforcement of this Note.
(h) Cumulative Remedies: All of City's remedies in connection with this Note
or under applicable law shall be cumulative, and City's exercise of any one or more of those
remedies shall not constitute an election of remedies.
(i) Severability: The unenforceability or invalidity of any provision or
provisions of this Note as to any persons or circumstances shall not render that provision or those
provisions unenforceable or invalid as to any other provisions or circumstances, and all
provisions hereof, in all other respects, shall remain valid and enforceable.
IN WITNESS WHEREOF, Maker has duly executed and delivered this Note to City as of
the date first above written.
"Maker"
By:
Title:
129/014094-0001
155366,01 a01129/01 -4-
EXHIBIT "C"
Order No.
Escrow No.
Loan No.
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Palm Springs, California
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92263
Attn: City Clerk
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DEED OF TRUST WITH ASSIGNMENT OF RENTS
(SHORT FORM)
This DEED OF TRUST, made 20C_, between herein
called TRUSTOR, FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, herein called
TRUSTEE, and the CITY OF PALM SPRINGS, a California municipal corporation, herein called
BENEFICIARY,
WITNESSETH: That Trustor grants to Trustee in trust, with power of sale, that property in the City of Palm
Springs, County of Riverside, State of California, described as:
[TO BE INSERTED]
together with the rents, issues and profits thereof, subject, however, to the right, power and authority
hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues and profits for the
purpose of securing (1) payment of the sum of $ .00, with interest thereon,
according to the terms of a Promissory Note of even date herewith by Trustor to order of Beneficiary, and
extensions or renewals thereof; (2)the performance of each agreement of Trustor incorporated by reference or
contained herein; and (3) payment of additional sums and interest thereon which may hereafter be loaned to
Trustor, or his successors or assigns, when evidenced by a promissory note or notes reciting that they are
secured by this Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the property above described, Trustor
expressly makes each and all of the agreements, and adopts and agrees to perform and be bound by each
and all of the terms and provisions set forth in subdivision A, and it is mutually agreed that each and all of the
terms and provisions set forth in subdivision B of the fictitious deed of trust recorded in Orange County August
17, 1964, and in all other counties August 18, 1964, in the book and at the page of Official Records in the office
of the county recorder of the county where said property is located, noted below opposite the name of such
county, namely:
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155366.01 a01/29101 4-
Q1#4P./
ly I )
COUNTY BOOK PAGE COUNTY BOOK PAGE I COUNTY BOOK PAGE COUNTY BOOK PAGE
Alameda 1288 556 Kings 858 713 1 Placer 1 1028 379 1 Sierra 36 1 187
Alpine 3 130-31 Lake 437 110 1 Plumas 1 166 1307 1 Siskl ou 506 1 762
Amador 133 438 Lassen 192 367 1 Riverside 1 3778 347 1 Solano 1287 621
Butte 1330 513 Los Angeles T-3878 874 1 Sacramento 1 5039 124 1 Sonoma 2067 427
Calaveras 185 338 Madera 911 136 1 San Benito 1 300 405 1 Stanlslaus 1970 56
Colusa 323 391 Madn 1849 122 San Bernardino 1 6213 768 1 Sutter 655 585
Contra Costa 4684 1 Mariposa 90 453 San Francisco I A-804 596 1 Tehama 457 183
Del Norte 101 549 Mendocino 667 99 San Joaquin 2855 283 1 Trinity 108 595
El Dorado 704 635 Merced 1660 753 San Luis Obispo 1311 137 Tulare 2530 108
Fresno 6062 623 Modoc 191 93 San Mateo 4778 175 Tuolumne 177 660
Glenn 469 76 Mono 69 302 Santa Barbara 2065 881 Ventura 2607 237
Humboldt 801 83 Monterey357 239 Santa Clara 6626 664 Yolo 769 16
Imperial 1189 701 Napa 704 742 Santa Cruz 1538 1 607 Yuba 398 693
in o 165 672 Nevada 363 94 Shasta 800 633
Kern 3756 690 Orange 7182 16 San Diego SERIES 5 Book 1964.Page 149774
shall inure to and bind the parties hereto, with respect to the property above described. Said agreements, terms and
provisions contained in said subdivisions A and B (identical in all counties, and printed on pages 3 and 4 hereof) are by
the within reference thereto, incorporated herein and made a part of this Deed of Trust for all purposes as fully as if set
forth at length herein, and Beneficiary may charge for a statement regarding the obligation secured hereby, provided the
charge therefor does not exceed the maximum allowed by law.
The undersigned Trustor, requests that a copy of any notice of default and any notice of sale hereunder be mailed to him
at his address hereinbefore set forth.
STATE OF CALIFORNIA }
} ss Signature of Trustor
COUNTY OF }
On
before me,
personally appeared By:
personally known to me(or proved to me on the basis of Its:
satisfactory evidence)to be the person(s)whose name(s)
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in BY:
his/her/their authorized capacity(ies), and that by
his/her/their signature(s)on the instrument the person(s)or Its:
the entity upon behalf of which the person(s)acted,
executed the instrument.
WITNESS my hand and official seal.
Signature
(This area for official notarial seal)
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155366,01 a01/29/01 2
� 14 zZ
DO NOT RECORD
The following is a copy of Subdivisions A and B of the fictitious Deed of Trust recorded in each county in California as stated in the foregoing Deed of
Trust and incorporated by reference in said Deed of Trust as being a part thereof as if set forth at length therein,
A. To protect the security of this Deed of Trust,Trustor agrees:
1) To keep said property in good condition and repair, not to remove or demolish any building thereon; to complete or restore promptly
and in a good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to Pay when due all claims for
labor performed and materials furnished therefor, to comply with all laws affecting said property or requiring any alterations or improvements to be
made thereon; not to commit or permit waste thereof; not to commit, suffer or permit any act upon said property in violation Maw; to cultivate,
irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said property may be reasonably necessary, the specific
enumerations herein not excluding the general.
2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary. The amount
collected under any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order as
Beneficiary may determine, or at the option of Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such
application or release shall not cure or waive any default or notice of default hereunder or Invalidate any act done pursuant to such notice.
3) To appear in and defend any action or proceeding purporting attorne
to affect the security hereof or the rights or powers of Beneficiary or
Trustee; and to Pay all costs and expenses, including cost of evidence of title and ys fees in a reasonable sum, in any such action or
proceeding in which Beneficiary or Trustee may appear,and in any suit brought by Beneficiary to foreclose this Deed.
4) To pay: at least ten days before delinquency all taxes and assessments affecting said property, including assessments on
appurtenant water stock;when due,all encumbrances,charges and liens,with interest,on said property or any part thereof,which appear to be prior
or superior hereto;all costs,fees and expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary of Trustee, but without obligation so to do
and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may:make or do the same is such manner
and to such extent as either may deem necessary to protect the security hereof,Beneficiary or Trustee being authorized to enter upon said property
for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or
Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior
hereto;and,in exercising any such powers,pay necessary expenses,employ counsel and pay his reasonable fees.
5) To pay immediately and without demand all sums so expended by Beneficiary or Trustee,with interest from date of expenditure at the
amount allowed by law in effect at the date hereof, and to pay for any statement provided for by law in effect at the date hereof regarding the
obligation secured hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is
demanded.
B. It is mutually agreed:
1) That any award in connection with any condemnation for public use of or injury to said property or any part thereof is hereby assigned
and shall be paid to Beneficiary who may apply or release such moneys received by him in the same manner and with the same effect as above
provided for disposition of proceeds of fire or other insurance.
2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive his right either to require prompt
payment when due of all other sums so secured or to declare default for failure so to pay.
3) That at any time or from time to time,without liability therefor and without notice,upon written request of Beneficiary and presentation
of this Deed and said note for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured
hereby,Trustee may:reconvey any part of said property;consent to the making of any map or plat thereof;join in granting any easement thereon,or
join in any extension agreement or any agreement subordinating the lien or charge hereof.
4) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed and
said note to Trustee for cancellation and retention or other disposition as Trustee in its sole discretion may choose and upon payment of its fees,
Trustee shall reconvey, without warranty, the properly then held hereunder. The recitals in such reconveyance of any matters or facts shall be
conclusive proof of the truthfulness thereof. The Grantee in such reconveyance may be described as"the person or persons legally entitled thereto."
5) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power and authority, during the
continuance of these Trusts,to collect the rents,issues and profits of said property,reserving unto Trustor the right,prior to any default by Trustor in
payment of any indebtedness secured hereby or in the performance of any agreement hereunder, to collect and retain such rents, issues and profits
as they become due and payable. Upon any such default,Beneficiary may at any time without notice,either in person, by agent,or be a receiver to
be appointed by a court,and without regard to the adequacy of any security for the indebtedness hereby secured,enter upon and take possession of
said property or any part thereof,in his own name sue for or otherwise collect such rents, issues, and profits, including those past due and unpaid,
and apply the same, less costs and expenses of operation and collection, including reasonable attorneys'fees, upon any indebtedness secured
hereby, and in such order as Beneficiary may determine. The entering upon and taking possession of said properly, the collecting of such rents,
issues and profits and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act
done pursuant to such notice.
6) That upon default by Trustor in payment of any indebtedness secured hereby or in the performance of any agreement hereunder,
Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand
for sale and of written notice of default and of election to cause to be sold said property, which notice Trustee shall cause to be filed for record.
Beneficiary also shall deposit with Trustee this Deed,said note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having
been given as then required by law, Trustee,without demand on Trustor, shall sell said property at the time and place fixed by it in said notice of
sale,either as a whole or in separate parcels,and in such order as it may determine,at public auction to the highest bidder for cash in lawful money
of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of said property by public announcement at such time
and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding
postponement. Trustee shall deliver to such purchaser its deed conveying the property so sold, but without any covenant or warranty, express or
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155366.01 u01/29/01 3 a q,4 3
Implied, The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof, Any person, including Trustor,
Trustee,or Beneficiary as hereinafter defined,may purchase at such sale.
After deducting all costs,fees and expenses of Trustee and of this Trust,including cost of evidence of title in connection with sale,Trustee
shall apply the proceeds of sale to payment of; all sums expended under the terms hereof, not then repaid, with accrued interest at the amount
allowed by law in effect at the date hereof; all other sums then secured hereby; and the remainder, if any,to the person or persons legally entitled
thereto,
7) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing,
substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and duly
acknowledged and recorded in the office of the recorder of the county or counties where said property is situated shall be conclusive proof of proper
substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate,
rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and page
where this Deed is recorded and the name and address of the new Trustee,
8) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators,
executors,successors and assigns. The term Beneficiary shall mean the owner and holder,including pledgees,of the note secured hereby,whether
or not named as Beneficiary herein. In this Deed,whenever the context so requires,the masculine gender includes the feminine and/or neuter,and
the singular number includes the plural.
9) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a public record as provided by law.
Trustee is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which Trustor,
Beneficiary or Trustee shall be a party unless brought by Trustee.
DO NOT RECORD REQUEST FOR FULL RECONVEYANCE
TO FIRST AMERICAN TITLE INSURANCE COMPANY,TRUSTEE:
The undersigned is the legal owner and holder of the note or notes and of all indebtedness secured by the foregoing Deed of Trust. Said
note or notes, together with all other indebtedness secured by said Deed of Trust,have been fully paid and satisfied;and you are hereby requested
and directed,on payment to you of any sums owing to you under the terms of said Deed of Trust, to cancel said note or notes above mentioned,an
all other evidences of indebtedness secured by said Deed of Trust delivered to you herewith, together with the said Deed of Trust, and to reoonvey,
without warranty,to the parties designated by the terms of said Deed of Trust,all the estate now held by you under the same.
Dated
Please mail Deed of Trust,
Note and Reoonveyance to
Do not lose or destroy this Deed of Trust OR the NOTE which it secures. Both must be delivered to the Trustee for
cancellation before reconveyance will be made.
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129/0140840001 p`
155366.01 a01@9/01 4
MINUTE ORDER NO. 6870
APPROVING THE SUBJECT AGREEMENT,
SUBJECT TO FINAL WORDING BY THE CITY
ATTORNEY, TO ALLOW PAYMENT OF IN-LIEU
PARKING FEES, IN THE AMOUNT OF $80,000 OVER
A 2.5 YEAR PERIOD, FOR THE CHOPHOUSE
RESTAURANT, LOCATED AT 262 SOUTH PALM
CANYON DRIVE, CBD ZONE, SECTION 15 (CASE
NO. 3.1928).
------------------
I HEREBY CERTIFY that this Minute Order, approving the subject agreement, subject
to final wording by the City Attorney, to allow payment of in-lieu parking fees, in the
amount of $80,000 over a 2.5 year period, for the Chophouse Restaurant, located at
262 South Palm Canyon Drive, CBD Zone, Section 15 (Case No. 3.1928), was
adopted by the City Council of the City of Palm Springs, California, in a meeting
thereof held on the 20th day of June, 2001.
PATRICIA A. SANDERS
City Clerk