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HomeMy WebLinkAbout9/19/2001 - STAFF REPORTS (2) DATE: SEPTEMBER 19, 2001 TO: COMMUNITY REDEVELOPMENT AGENCY and CITY COUNCIL FROM: DIRECTOR OF REDEVELOPMENT AGENCY PUBLIC HEARING ON THE THIRD AMENDMENT TO A DISPOSITION AND DEVELOPMENT AGREEMENT WITH JOHN WESSMAN, DBA WESSMAN DEVELOPMENT COMPANY TO SETTLE A LIQUIDATED DAMAGES CLAIM ARISING FROM THE CONSTRUCTION OF THE PLAZA MERCADO SHOPPING CENTER, 155 SOUTH PALM CANYON DRIVE, AND PROVIDING FOR THE CONSTRUCTION OF A SONNY BONO MEMORIAL FOUNTAIN AT THE SITE; COUNCIL CONCURRENCE AND BUDGET RESOLUTION RECOMMENDATION: That the Community Redevelopment Agency of the City of Palm Springs ("CRA") approve the Third Amendment to a Disposition and Development Agreement("DDA") with John Wessman, dba Wessman Development Company, settling claims and demands by both parties arising from the construction of the Plaza Mercado Shopping Center and adjacent public parking lot by allowing the developer to construct a memorial to former Mayor Sonny Bono at the site; that the Council concur, and adopt a budget resolution transferring Parking Fund monies to the Agency to implement the Amendment. SUMMARY: As part of the construction of the Plaza Mercado Shopping Center, the City and Agency determined that it was more cost effective to have the Developer construct the public parking lot on a reimbursement basis, rather than through the City's public works processes. The Developer constructed the lot forthe amount of$421,584.20 and billed the Agency for that amount; the City and Agency, through a separate Agreement, conveyed the lot from the Agency to the City and the City's Parking Fund paid the developer for the parking lot improvements. However, delays in the construction of the shopping center led to a claim by the Agency against the Developer for liquidated damages, in the amount of $128,000. That amount has been withheld by the City from the payment to the Developer for the parking lot, leading to a counter-claim by the Developer against the Agency. This DDA Amendment will settle all the disputes and claims by both parties by allowing the Developer to construct a fountain in memory of former Mayor Sonny Bono in the open plaza area on the Palm Canyon Drive side of Plaza Mercado, including a bronze statue of Mr. Bono. The Agency would reimburse the Developer based on progress payments, up to the Agency Liquidated Damages Claim Amount of $128,000; the City would transfer Parking funds to the Agency in that amount. BACKGROUND: Staff has been negotiating the settlement of the liquidated damages dispute with the Developer since the completion of the Plaza Mercado building in 1999. The Developer paid forthe construction of the Agency-owned (now City-owned) parking lot and was reimbursed all but the $128,000, which is the amount of liquidated damages calculated by the Agency the Developer owes because of delays in the project. The Developer has disputed that claim and has made a claim against the Agency forthe final$128,000 forthe parking lot construction; the Developerwas not eo4w party to the separate Purchase and Sale Agreement between the City and Agency and only has a claim against the Agency. In an effort to settle all the claims and demands by both parties, the Agency and Developer agree that the Dispute shall be settled and resolved by the Developer agreeing to cause a permanent memorial dedicated in the name of former Mayor Sonny Bono to be designed and constructed on Palm Canyon Drive in front of Developer's improvements. With respect to the Memorial, it is agreed as follows: 1. The Memorial shall consist of a water feature (fountain) and statute with an appropriate plaque commemorating the efforts, achievements and/or contributions of Mayor Bono. 2. Written evidence of Congresswoman Bono's approval of the Memorial design including the plaque shall be submitted prior to any payments to Developer. 3. The Memorial shall be located on Palm Canyon Drive directly in front of Plaza Mercado. Approximately half the Memorial shall be located on Developer's property, and half in the City's right of way, subject to an Encroachment Agreement; provided, however, that the Memorial shall be located so as to minimize any impact from Developer's improvements to the buildings to the north and to the south of the Memorial as well as pedestrian movement on South Palm Canyon Drive. 4. The Memorial shall be financed by the Developer. The Developer shall be reimbursed in progress payments from the Agency up to the $128,000 retained by the City's Parking Fund, under the Agency's claim for liquidated damages. 5. The final design rendering as approved by the Public Arts Commission shall be attached as "Exhibit B" to the Agreement. The Developer is allowed to separately seek refund of his Public Art fee through the Arts Commission. 6. The developer agrees to minimize disruption within the area to the other business owners during construction. 7. Developer shall maintain the Memorial in a safe, clean and secure condition; the Public Arts Commission shall record an easement against the property allowing it access to maintain the Memorial should the developer fail to do so. In consideration for this Third Amendment, the Agency and Developer will release and discharge each other from any and all claims, demands, causes of action, obligations, damages, attorneys' fees, costs and liabilities of any nature whatsoever, relating to the Dispute. UA47,,. Attached is the Third Amendment to the Disposition and Development Agreement as well as budget resolutions transferring funds from the City's Parking Fund to the Agency. Funds for this agreement will originate in the City's Parking Fund (Plaza Mercado Parking Lot, 131-4461-50172) but will be transferred to a line item in Merged Project Area. JOHN S. AYM N D'recto f Redeve opment APPROVE � Executive Directo ATTACHMENTS: 1. Resolutions (Agency and City) 2. Third Amendment to the Dispositionand Development Agreement 3. Public Hearing Notice 4. Budget Resolutions (City and Agency) � kA4 ;F THIRD AMFNDMFNT TO DISPOSITION AND D VFI OPMF IT AGRFFMFNT This Third Amendment to Disposition and Development Agreement (the "Third Amendment") is entered into by and between the Community Redevelopment Agency of the CITY OF PALM SPRINGS, a public body, corporate and politic ("the Agency") and JOHN WESSMAN dba WESSMAN DEVELOPMENT COMPANY, an individual ("Developer"), and is intended by the parties hereto to settle fully and finally certain differences between them arising out of, or related to, the DDA defined hereinafter. RFr'ITAI R WHEREAS, the Agency and Developer entered into that certain Disposition and Development Agreement dated July 7, 1992, which was approved by the Agency Board pursuant to Resolution No. 866 on June 23, 1992, as supplemented/modified by that certain letter agreement dated January 21, 1993 (collectively the "Original DDA"), with respect to the acquisition and development of certain real property located in the City of Palm Springs and more particularly described in the Original DDA; and WHEREAS, the Original DDA was amended by that certain First Amendment to Disposition and Development Agreement ("Bullock's Property") dated for reference purposes as of July 23, 1997 (First Amendment"); and WHEREAS, The Original DDA, as amended by the First Amendment, was further amended by that certain Second Amendment to Disposition and Development Agreement dated for reference purposes as of September 22, 1997 ("Second Amendment"). The Original DDA, as amended by the First Amendment and Second Amendment, is referred to herein as the DDA. Capitalized terms used and not defined in this Third Amendment shall have the meanings ascribed as such terms in the DDA; and WHEREAS, as of the date of this Third Amendment, the Developer has completed the improvements to be completed by the Developer pursuant to the DDA ("Developer's Improvements"). During the course of completing Developer's Improvements, the Developer performed and completed certain work and improvements for the Agency ("Agency's Improvements"). The Agency's Improvements consisted primarily of work performed in connection with a parking lot located adjacent to Developer's Improvements, and a portion of Heritage Trail located adjacent to said parking lot; and WHEREAS, as a result of and pursuant to the work performed by Developer in connection with completing the Agency's Improvements, Developer has submitted billing statements to the Agency, in the total sum of Four Hundred Twenty-One Thousand Five Hundred Eighty-Four and 20/100 Dollars ($421,584.20) ("Developer's Claim"), the amount of which is not in dispute by the City, and of which the City has paid Developer Two Hundred Ninety-Three Thousand Five Hundred Eighty-Four and 20/100 Dollars ($293,584.20). In addition, as a result of the liquidated damages provisions in the Second Amendment of the DDA, and the Agency's position with respect to Developer's completion of Phase I of Developer's Improvements, the Agency has submitted a request that Developer pay the sum of One Hundred Twenty-Eight Thousand and no/100 Dollars ($128,000.00) ("Agency's Liquidated Damages Claim"), the amount of which Developer disputes. (The Developer's IRV#11900 v1 1- Claim against the Agency and the Agency's Liquidated Damages Claim against the Developer are hereinafter sometimes referred to collectively as the "Dispute".); and WHEREAS, the City of Palm Springs also has interest in parking at the Plaza Mercado site and did acquire from the Agency the public parking lot by a separate Agreement, as well as paid for the Developer to construct the parking improvements on the site; the "Agency Liquidated Damages Claim" or Retention Amount is $128,000 in the City's Parking Fund that was withheld from the Developer upon completion of the parking lot improvements for the Agency; and WHEREAS, the Agency and Developer now desire to enter into this Third Amendment to the DDA for purposes of settling the Dispute and to avoid the costs, disruption, inconvenience and uncertainty of litigation to enforce the terms of the DDA, and releasing their respective claims relating to the Dispute; and WHEREAS, Developer hereby acknowledges that the above recitals are true and correct, and admits and waives any right to challenge its obligations as set forth in this Third Amendment in the event any litigation arises regarding the subject matter of this Third Amendment. NOW, THEREFORE, for full and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and based upon the foregoing recitals and the terms, conditions, covenants, and agreements contained herein, the parties hereto agree as follows: Section 1. Developer, City and Agency agree that the following shall be added as new Section 2(d) to the Second Amendment to the Disposition and Development Agreement. 2.(d) Dispute After Performance. Developer has completed the Agency's Improvements and Developer has submitted billing statements to the Agency, in the total sum of Four Hundred Twenty-One Thousand Five Hundred Eighty-Four and 20/100 Dollars ($421,584.20) ("Developer's Claim"). The City has paid Developer Two Hundred Ninety-Three Thousand Five Hundred Eighty- Four and 20/100 Dollars ($293,584.20) of the Developer's Claim from the Parking Fund. As a result of the liquidated damages provisions specified above, and the Agency's position with respect to Developer's completion of Phase I of Developer's Improvements, the Agency has submitted a request that Developer pay the sum of One Hundred Twenty-Eight Thousand and no/100 Dollars ($128,000.00) ("Agency's Liquidated Damages Claim"), the amount of which Developer disputes. The City is holding those funds in the Parking Fund. (The Developer's Claim against the Agency and the Agency's Liquidated Damages Claim against the Developer are hereinafter sometimes referred to collectively as the "Dispute".) Developer and Agency agree that the Dispute shall be settled and resolved by the Developer agreeing to cause a permanent memorial dedicated in the name of former Mayor Sonny Bono to be designed and constructed on Palm Canyon Drive in front of Developer's Improvements ("Memorial"). With respect to the Memorial, it is agreed as follows: my N11900 vt -2- tk,44 �- (i.) Type of Memorial. The parties contemplate that, subject to approval of the final design in the manner contemplated below, the Memorial shall consist of a water feature and statute with an appropriate plaque commemorating the efforts, achievements and/or contributions of Mayor Bono. (ii.) Approval by Congresswoman Bono. Written evidence of Congresswoman Bono's approval of the Memorial design including the plaque shall be submitted prior to any payments to Developer. (iii.) Location of Memorial. The Memorial shall be located on Palm Canyon Drive directly in front of Developer's Improvements. Approximately half of the Memorial shall be located on private property (owned by the Developer), and half shall be located within the public right of way, as allowed by an Encroachment Agreement between the City of Palm Springs and the Developer; provided, however, that the Developer shall endeavor to locate the Memorial so as to minimize any impact from Developer's improvements to the buildings to the north and to the south of the Memorial and allow free pedestrian movement along Palm Canyon Drive per the Encroachment Agreement. "Exhibit A" attached hereto and incorporated herein, shall show the location of the Memorial. (iv.) Financing of Memorial. The Memorial shall be financed by the Developer. The Developer shall be reimbursed in progress payments from the $128,000 amount retained by the City, under the Agency's claim for liquidated damages, which is the remaining amount owed under the Developer's Claim ("Retention Amount"). Twenty percent (20%) of each progress payment shall be withheld until thirty (30) days after completion of the Memorial to the satisfaction of the Executive Director. In the event the Memorial, as approved, costs more than the Retention Amount, Developer shall be responsible for any additional amounts to complete the Memorial. In the event the Memorial costs less than the Retention Amount, then after acceptance of the Memorial as complete by the Agency, any remaining Retention Amount shall be placed into an Agency line item allocated for Downtown Beautification. Developer will submit monthly Draw Requests for payment of costs of the Memorial. Should the cost of the Memorial exceed the Retention Amount, Developer may, upon acceptance of the Memorial by the City's Public Arts Commission, apply for a refund of the Developer's Public Arts In-lieu fee paid on the Plaza Mercado project; in no case shall the combined Retention Amount refund and Public Arts refund exceed the cost of the Memorial. (v.) Time Schedule. With respect to the matter of designing and constructing the Memorial, the parties shall exert best efforts to comply with the time schedule set forth below: a. Final Design. The final design rendering as approved by the Public Arts Commission shall be attached as "Exhibit B." b. Minimize Disruption. Developer agrees to minimize disruption within the area to the other business owners during construction. The Developer shall obtain approval by the Assistant City ntv au9oo,i -3- C �� - ,8G Manager for Special Projects of the proposed construction plan to ensure minimal disruption prior to commencing construction. C. Completion of Construction of Memorial. Within one hundred fifty (150) days of issuance of City Building Department permits for construction of the Memorial, Developer shall complete Memorial. (vi.) Maintenance. Developer, his successors in interest, assigns, heirs, or transferees by whatever means, either voluntary or involuntary, shall maintain the memorial in a safe, clean and secure condition. Section 2. Agency's Execution. The Agency shall execute this Third Amendment within thirty (30) days of the execution by Developer. Section 3. Dispute Release. In consideration for this Third Amendment, the Agency and Developer hereby release and forever discharge each other from any and all claims, demands, causes of action, obligations, damages, attorneys' fees, costs and liabilities of any nature whatsoever, relating to the Dispute. Section 4. Discovery of Different or Additional Facts. The parties acknowledge that they may hereafter discover facts different from or in addition to those they now know or believe to be true with respect to the claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are the subject of the Release set forth in Paragraph 3 of this Third Amendment, and they expressly agree to assume the risk of the possible discovery of additional or different facts, and agree that this Third Amendment shall be and remain effective in all respects regardless of such additional or different facts. Section 5. Non-Admission of Liability. The parties acknowledge and agree that this Third Amendment is a settlement of potentially disputed claims. Neither the fact that the parties have settled nor the terms of this Third Amendment shall be construed in any manner as an admission of any liability by any party hereto, or any of its employees, or any affiliated person(s) or entitylies. Section 6. The DDA is Deemed Modified to the Extent Inconsistent With the Provisions of This Third Amendment. Except as provided herein, the DDA continues unmodified and in full force and effect. (SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the undersigned have executed this Third Amendment, and have initialed each page hereof, on the dates set forth below. nw au900 vi -4- C kA 47 Dated: 2001 JOHN WESSMAN By: for Wessman Development Company Dated: 12001 AGENCY By: Executive Director Community Redevelopment Agency of the City of Palm Springs ATTEST: By: Agency Secretary APPROVED AS TO FORM: Dated: 12001 BURKE WILLIAMS & SORENSEN, LLP By: Agency Counsel IRV#11900 V1 -5- eleo W. At STATE OF CALIFORNIA ) ) ss. COUNTY OF RIVERSIDE ) On 2001, 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 me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (SEAL) STATE OF CALIFORNIA ) ss. COUNTY OF RIVERSIDE ) On 2001, 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 me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (SEAL) IRV 411900 1 -6- 60 - X; The Desert Sun 1 1 Public Notice Public Notice No 9244 CITY OF PALM SPRINGS NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN,that the Community Redevelopment Agency of the City of Palm Springs and the City of Palm Springs will hold a Public Hearngg In the Clty Council Chambers, lo- cated at 3200 Tahqwfz Canyon Way, Palm Springs,California 92262, beginning at 7:00 p.m., Wednesday, September 19,2001,to consider the following: Third Amendment to a Disposition and Development Agreement with Jahn Wessman cl Wessman Development Company regarding the property referred to as Plaza Mercado, 155 South Palm Canyon Drive between Tahquitz Canyon Way and Arenas Road Palm Springs, California 92262 The Community Redevelopment Agency of the City of Palm Springs ('A ency") proposes a to amend a Disposition and Development Agreement ("DDA") with John Wessman dtbla Wessman De- velopment Company ("Developer"). To approve this Third Amendment, the Community Redevel- opment Agency is required to conduct a Public Hearing to receive puti input on the matter. The nature of the Third Amendment Is that the Agency has withheld an amount of One Hundred Twenty Eight Thousantl Dollars ($128,000) from payment owed Developer for the construction of the public Plaza Mercado parking lot pursuant to the Agreement as of liquidated damsgg0 Provisions in the re A giment ("Agency's LiquIt- ed Damages Claim. The Developer disputes the amount an tl has made claim against the Agency for the amoum owed. Bath parties now desire to resolve the dispute to avoid the costs, disruption, and uncertainty of further litigation.Developer and Agency agree that the dispute shall be settled and resolved by the Developer agreeing to cause a permanent memorial dedicated in the name of former Mayor Sonny Bono to be designed and constructed on Palm Canyon Drive infront of De- veloper's Improvements, which shall consist of a water feature and bronze statue as wall as an m appropriate plaque camemora�in the efforts and achievements, of Mayor Bono. the Developer shall finance the Memorial, and shall be reim- bursed in progress payments by Agency up to the amount of the Agency's Liquidated Damages Claim In return for the Third Amendment Agency and Developer shall release each other from any clams, demands or any other obligation related to the Dispute. All interested persons are invited to attend the Public Hearing and exppress opinions on the item fisted above. If you challenge the nature of the proposed action in court, you may be limited to raising only those issues you or someone else raised at the Public Hearing described in this no- tice, or in written correspondence delivered to the City Clerk, at the address listed above,at or prior to the Public Hearing. Members of the public may view this document and all referenced documents in the Community Redevelopment Department,City Hall,and submit written comments to the Community Redevelop- ment Agency at or prior to the Community Rede- velopment Agency Meeting at or prior to the pub- lic hearing described in this notice. Further information, including a copy of the Third Amendment and Resolution, prepared in accor- dance with Health and Safety Code Section 33433, is available In the Office of the City Clerk, at the above address. PATRICIA A SANDERS, PUB. September 6 and'13, 2001 City Clerk PROOF OF PUBLICATION This is spaee for CoLInty Clerks Filing Stamp (2015.5.C.C.P) r STATE OF CALIFORNIA INo.9244 TY OF PALM SPRINGS County of Riverside NOTICE OF PUBLIC HEARING NOTIGTIS HEREBY GIVEN that the Community Redevelopment Agency of the City of Palm Springs and the City of Palm Springs will hold a Public Hearingg m the Cityy Council Chambers, lo- cated at 3200 Tahquitz Canyon Way, Palm Springs, California 92262, beginning at 7.00 p.m., Wednesday, September 19, 2001,to consider the fallowing. Third Amendment to a Disposition and Development Agreement with John Wessman d/b/a Wessman lam a citizen Of the United States and a resident of Development Company regarding the the Count aforesaid;I am over the age of eighteen property referred to as Plaza Mercado, y, g g 155 South Palm Canyon Drive years,and not a party to or interested in the between Tahquitz Canyon way and Arenas Road above-entitled matter.I am the principal clerk of a Palm Springs, California 92262 printer of the,DESERT SUN PUBLISHING The Community Redevelopment Agency of the City of Palm Springs ('Aqency") proposes a to COMPANY a newspaper of general circulation, i amend a Disposition and Development Agreement ("RDA") with John Wessman d/b/a Wessman Re- printed and published in the city of Palm Springs, valopment Company ('Developer") To approve Count of Riverside,and which newspaper has been this Third Amendment, the Community Redevel- yo ment Agency is required to conduct a Public adjudged a newspaper of general circulation by the fearing to receive public Input on the matter. Superior Court of the County Of Riverside,State of The nature of the Third Amendment is that the Agency has withheld an amount of One Hundred California under the date of March 24, 1988.Case Twenty rant thousand Dollars ($128,000) from payment owed Developer for the construction of Number 191236;that the notice,of which the the of Ire Plaza Mercado parking lot pursuant to annexed is a printed W set in a not smaller the Agreement because of liquidated damagges p copy( type provisions in the Aggreement ("Agency's Dquidat- than non partiel,has been published ill each regular ed Damages Claima The Developer disputes the amount and has made claim against the Agency and entire issue of said newspaper and not in any foi the amount owed. Both parties now desire to resolve the dispute to avoid the costs,disruption, supplement thereof on the following dates,to wit: and uncertainty of further litigation.Developer and Agency agree that the dispute shall be settled and resolved by the Developer aq reemg to cause a a permanent memorial dedicated in the name of September 6t11,13L1 ----I formes Mayor Sonny Bono to be designed and - ------- - ------ --- ------ -- ----------------- constructetl on Palm Canyon Drive in front of De- volopei's Improvements, which shall consist of a water feature and bronze statue, as well as an --- ------- - -- ---- - appropriate plaque commemorating the efforts ------_____-----_-----_ and achievements, of Mayor Bono.The Developer shall finance the Memorial, and shall be reim- bursed in progress payments by Agency up to the amount of the Agency's Liquidated Damages All in the year 2001 Claim. In return for the Third Amendment,Agency and Developer shall release each other from any claims, demands or any other obligation relatetl I certify(or declare)tinder penalty of perjury that the to the Dispute. foregoing is true and correct. All interested selects are invited to attend the 13th Public Hearing and express opinions on the item fisted above. If you challenge the nature of the Dated at Palm Springs,California this--------------day proposed action in court, you may, be limited to raising only these issues you or someone else September raised at the Public Hearing described in this no- 1 tice, or In written correspondence delivered to the ef--------------------------------------1 2001 City Clerk, at the address listed above,at or prior to the Public Hearing. Members of the public may view this document and all referenced documents in the Community�- `t✓\. - Redevelopment Department, City Hall, and submit -------------------------------- """""""""""' written comments to the Community Redevelop- Si nature meat Agency at or prior to the Community Rede- g velopment Agency Meeting at or prior to the pub- lic hearing described in this notice Further information, including a copy of the Third Amendment and Resolution, prepared in accor- dance with Health and Safety Code Section 33433, is available in the Office of the City Clerk, at the above address. PATRICIA A. SANDERS, City Clark PUB. Septerr r 6 and 1° '1nI RESOLUTION NO. 1148 OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING THE THIRD AMENDMENT TO A DISPOSITION AND DEVELOPMENT AGREEMENT WITH JOHN WESSMAN, DBA WESSMAN DEVELOPMENT COMPANY, SETTLING A LIQUIDATED DAMAGES CLAIM ARISING FROM THE CONSTRUCTION OF THE PLAZA MERCADO SHOPPING CENTER, 155 SOUTH PALM CANYON DRIVE, AND PROVIDING FOR THE CONSTRUCTION OF A SONNY BONO MEMORIAL FOUNTAIN AT THE SITE, MERGED PROJECT AREA #1 (CBD) ------------------- WHEREAS, the Community Redevelopment Agency of the City of Palm Springs, California("Agency")is constituted underthe Community Redevelopment Law (California Health and Safety Code Section 33000 et. seq.) to carry out the purpose as the redevelopment in the City of Palm Springs ("the City"); and WHEREAS,the Agency and Developer entered into thatcertain Disposition and Development Agreement dated July 7, 1992, which was approved by the Agency Board pursuant to Resolution No. 866 on June 23, 1992, as supplemented/modified by that certain letter agreement dated January 21, 1993 (collectively the "Original DDA"), with respect to the acquisition and development of certain real property located in the City of Palm Springs and more particularly described in the Original DDA; and WHEREAS, the Original DDA was amended by that certain First Amendment to Disposition and Development Agreement ("Bullock's Property") dated for reference purposes as of July 23, 1997 (First Amendment"); and WHEREAS, The Original DDA, as amended by the First Amendment, was further amended by that certain Second Amendment to Disposition and Development Agreement dated for reference purposes as of September 22, 1997 ("Second Amendment"). The Original DDA, as amended by the First Amendment and Second Amendment, is referred to herein as the DDA. Capitalized terms used and not defined in this Third Amendment shall have the meanings ascribed as such terms in the DDA; and WHEREAS, as the date of this Third Amendment, the Developer has substantially completed the improvements to be completed by the Developer pursuant to the DDA ("Developer's Improvements"). During the course of completing Developer's Improvements, the Developer performed and completed certain work and improvements for the Agency ("Agency's Improvements"). The Agency's Improvements consisted primarily of work performed in connection with a parking lot located adjacent to Developer's Improvements, and a portion of Heritage Trail located adjacent to said parking lot; and WHEREAS, as a result of and pursuant to the work performed by Developer in connection with completing the Agency's Improvements, Developer ton ap - &' Res. No. 1148 Page 2 has submitted billing statements to the Agency, in the total sum of Four Hundred Twenty-One Thousand Five Hundred Eighty-Four and 20/100 Dollars ($421,584.20) ("Developer's Claim"), the amount of which is not in dispute by the City, and of which the City has paid Developer Two Hundred Ninety-Three Thousand Five Hundred Eighty-Four and 20/100 Dollars ($293,584.20). In addition, as a result of the liquidated damages provisions in the Second Amendment of the DDA, and the Agency's position with respect to Developer's completion of Phase I of Developer's Improvements, the Agency has submitted a request that Developer pay the sum of One Hundred Twenty-Eight Thousand and no/100 Dollars($128,000.00)("Agency's Liquidated Damages Claim"),the amount of which Developer disputes. (The Developer's Claim against the Agency and the Agency's Liquidated Damages Claim against the Developer are hereinafter sometimes referred to collectively as the "Dispute".); and WHEREAS,the Agency and Developer parties now desire to enter into this Third Amendment to the DDA for purposes of settling the Dispute and to avoid the costs, disruption, inconvenience and uncertainty of litigation to enforce the terms of the DDA, and releasing their respective claims relating to the Dispute; and WHEREAS, the Agency has considered the staff report, and all the information, testimony and evidence provided at its regularly scheduled meeting of September 19, 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. 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 independentjudgment. SECTION 3. The Agency proposes,through this Third Amendmentto the 4 l i ,,���- j Res. No. 1148 Page 3 Disposition and Development Agreement, to reimburse Developer in progress payments up to the Agency Liquidated Damages Claim Amount ($128,000) for the construction of a fountain and sculpture in memory of Sonny Bono, constructed on the Developer's Improvements at 155 South Palm Canyon Drive, underterms set forth in the Third Amendment. SECTION 4. The proposed project is consistent with the Implementation Plan for this area, insofar as this project will beautify the downtown and decrease blight. It will also add another tourist attraction in a commercial area heavily dependent on tourism. SECTION 7. Based on foregoing reasons, this Third Amendment to the Disposition and Development Agreement is hereby approved and incorporated herein by this reference. SECTION 8. The Executive Director is authorized to execute all necessary documents, in a form approved by the Agency Counsel. ADOPTED this 19th day of September , 2001. AYES: Members Hodges, Jones, Oden, Reller-Spurgin and Chairman Kleindienst NOES: None ABSENT: None ATTEST: COMMUNITY REDEVELOPMENT AGENCY CITY OF PALM SPRINGS, CALIFORNIA By Assistant Secretary Chairman REVIEWED &APPROVED C �,4 _,4. RESOLUTION NO. OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING THE THIRD AMENDMENT TO A DISPOSITION AND DEVELOPMENT AGREEMENT WITH JOHN WESSMAN, DBA WESSMAN DEVELOPMENT COMPANY, SETTLING A LIQUIDATED DAMAGES CLAIM ARISING FROM THE CONSTRUCTION OF THE PLAZA MERCADO SHOPPING CENTER, 155 SOUTH PALM CANYON DRIVE, AND PROVIDING FOR THE CONSTRUCTION OF A SONNY BONO MEMORIAL FOUNTAIN AT THE SITE, MERGED PROJECT AREA#1 (CBD) ------------------- WHEREAS, the Community Redevelopment Agency of the City of Palm Springs, California("Agency")is constituted underthe Community Redevelopment Law (California Health and Safety Code Section 33000 et. seq.) to carry out the purpose as the redevelopment in the City of Palm Springs ("the City"); and WHEREAS,the Agency and Developer entered into that certain Disposition and Development Agreement dated July 7, 1992, which was approved by the Agency Board pursuant to Resolution No. 866 on June 23, 1992, as supplemented/modified by that certain letter agreement dated January 21, 1993 (collectively the "Original DDA"), with respect to the acquisition and development of certain real property located in the City of Palm Springs and more particularly described in the Original DDA; and WHEREAS, the Original DDA was amended by that certain First Amendment to Disposition and Development Agreement ("Bullock's Property") dated for reference purposes as of July 23, 1997 (First Amendment"); and WHEREAS, The Original DDA, as amended by the First Amendment, was further amended by that certain Second Amendment to Disposition and Development Agreement dated for reference purposes as of September 22, 1997 ("Second Amendment"). The Original DDA, as amended by the First Amendment and Second Amendment, is referred to herein as the DDA. Capitalized terms used and not defined in this Third Amendment shall have the meanings ascribed as such terms in the DDA; and WHEREAS, as the date of this Third Amendment, the Developer has substantially completed the improvements to be completed by the Developer pursuant to the DDA ("Developer's Improvements"). During the course of completing Developer's Improvements, the Developer performed and completed certain work and improvements for the Agency ("Agency's Improvements"). The Agency's Improvements consisted primarily of work performed in connection with a parking lot located adjacent to Developer's Improvements, and a portion of Heritage Trail located adjacent to said parking lot; and WHEREAS, as a result of and pursuant to the work performed by Developer in connection with completing the Agency's Improvements, Developer �,aA _ A. . A has submitted billing statements to the Agency, in the total sum of Four Hundred Twenty-One Thousand Five Hundred Eighty-Four and 20/100 Dollars ($421,584.20) ("Developer's Claim"), the amount of which is not in dispute by the City, and of which the City has paid Developer Two Hundred Ninety-Three Thousand Five Hundred Eighty-Four and 20/100 Dollars ($293,584.20). In addition, as a result of the liquidated damages provisions in the Second Amendment of the DDA, and the Agency's position with respect to Developer's completion of Phase I of Developer's Improvements, the Agency has submitted a request that Developer pay the sum of One Hundred Twenty-Eight Thousand and no/100 Dollars($128,000.00)("Agency's Liquidated Damages Claim"),the amount of which Developer disputes. (The Developer's Claim against the Agency and the Agency's Liquidated Damages Claim against the Developer are hereinafter sometimes referred to collectively as the "Dispute".); and WHEREAS,the Agency and Developer parties now desire to enter into this Third Amendment to the DDA for purposes of settling the Dispute and to avoid the costs, disruption, inconvenience and uncertainty of litigation to enforce the terms of the DDA, and releasing their respective claims relating to the Dispute; and 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. 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 outwhich 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 independentjudgment. SECTION 3. The Agency proposes, through this Third Amendmentto the 60A. A_ A s Disposition and Development Agreement, to reimburse Developer in progress payments up to the Agency Liquidated Damages Claim Amount ($128,000) for the construction of a fountain and sculpture in memory of Sonny Bono, constructed on the Developer's Improvements at 155 South Palm Canyon Drive, under terms set forth in the Third Amendment. SECTION 4. The proposed project is consistent with the Implementation Plan for this area, insofar as this project will beautify the downtown and decrease blight. It will also add another tourist attraction in a commercial area heavily dependent on tourism. SECTION 7. Based on foregoing reasons, this Third Amendment to the Disposition and Development Agreement is hereby approved and incorporated herein by this reference. SECTION 8. The Executive Director is authorized to execute all necessary documents, in a form approved by the Agency Counsel. ADOPTED this day of , 2001, AYES: NOES: ABSENT: ATTEST: COMMUNITY REDEVELOPMENT AGENCY CITY OF PALM SPRINGS, CALIFORNIA By Assistant Secretary Chairman REVIEWED & APPROVED a Y,m RESOLUTION NO. 1149 OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING THE BUDGET FOR THE 2001-02 FISCAL YEAR. WHEREAS Resolution 1101 approving the budget for the fiscal year 2001-02 was adopted on June 14, 2000; and WHEREAS the Executive Director has recommended, and the Agency desires to approve, certain amendments to said budget; NOW THEREFORE BE IT RESOLVED that the Director of Finance is authorized to record inter-fund cash transfers as required in accordance with this Resolution, and that Resolution 1101, adopting the budget for the 2001-02 fiscal year is hereby amended as follows: SECTION 1. ADDITIONS Transfer from City Parking Fund FUND Activity Account Amount 811 8191 50172 $128,000 Purpose: Implementation of Td Amendment to DDA SECTION 2. SOURCE FUND Activity Account Amount 131 4461 50172 $128,000 Adopted this 19thday of September 2001 AYES: Members Hodges, Jones, Oden, Reller—Spurgin and Chairman Kleindienst NOES: None ABSENT: None ATTEST: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS By Assistant Secretary Chairman REVIEWED AND APPROVED AS TO FORM R RESOLUTION NO. OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING THE BUDGET FOR THE 2000-01 FISCAL YEAR. WHEREAS Resolution 1101 approving the budget for the fiscal year 2000-01 was adopted on June 14, 2000; and WHEREAS the Executive Director has recommended, and the Agency desires to approve, certain amendments to said budget; NOW THEREFORE BE IT RESOLVED that the Director of Finance is authorized to record inter-fund cash transfers as required in accordance with this Resolution, and that Resolution 1101, adopting the budget for the 2000-01 fiscal year is hereby amended as follows: SECTION 1. ADDITIONS Transfer from City Parking Fund FUND Activity Account Amount 811 8191 50172 $128,000 Purpose: Implementation of 3rd Amendment to DDA SECTION 2. SOURCE FUND Activity Account Amount 131 4461 50172 $128,'000 Adopted this day of 2001 AYES: NOES: ABSENT: ATTEST: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS By Assistant Secretary Chairman REVIEWED AND APPROVED AS TO FORM