HomeMy WebLinkAbout6/27/2007 - STAFF REPORTS - RA.1. A O�pp`�SA�2
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COMMUNITY REDEVELOPMENT AGENCY STAFF REPORT
DATE: JUNE 27, 2007 CONSENT AGENDA
SUBJECT: APPROVAL OF A NON-DISTURBANCE AND ATTORNMENT
AGREEMENT BY AND AMONG THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS, ENDURE INVESTMENTS
LLC, A NEVADA LIMITED LIABILITY COMPANY, GEIGER LLC, A
CALIFORNIA LIMITED LIABILITY COMPANY AND HOME DEPOT
U.S.A., INC., A DELAWARE CORPORATION
FROM: David H. Ready, Executive Director
BY: Community and Economic Development Department
SUMMARY
This action approves a Non-Disturbance and Attornment Agreement by and among the
Community Redevelopment Agency of the City of Palm Springs, Endure Investments
LLC, a Nevada limited liability company, Geiger LLC, a California limited liability
company and Home Depot U.S.A., a Delaware limited liability company on the real
property located at the Northeast corner of Ramon Road and Gene Autry Trail, in the
City of Palm Springs, California, within Merged Redevelopment Project Area No. 1, also
known as "The Springs Shopping Center".
RECOMMENDATION:
1. Adopt Resolution No. "A RESOLUTION OF THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA,
APPROVING A NON-DISTURBANCE AND ATTORNMENT AGREEMENT BY AND
AMONG THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM
SPRINGS, ENDURE INVESTMENTS LLC, A NEVADA LIMITED LIABILITY
COMPANY, GEIGER LLC, A CALIFORNIA LIMITED LIABILITY COMPANY AND
HOME DEPOT U.S.A., INC., A DELAWARE CORPORATION."
2. Authorize the Executive Director to execute all necessary documents.
STAFF ANALYSIS:
The Non Disturbance and Attornment Agreement was not anticipated in the Disposition
ITEM NO. ` \\
Community Redevelopment Agency Staff Report
(June 27, 2007)--Page 2
(Geiger/Endure/Home Depot Non-Disturbance and Attornment Agreement)
and Development Agreement (DDA) by and between the Community Redevelopment
Agency "Agency" of the City of Palm Springs, California and Geiger LLC, a California
limited liability company dated December 12, 2005. This action recognizes the Non-
Disturbance and Attornment Agreement in accordance with the DDA.
The transfer of ownership from Geiger LLC, a California limited liability company and
Endure Investments, a Nevada limited liability company has been carried out in
accordance with Section 2.2.8 of the DDA by and between the Agency and Geiger.
FISCAL IMPACT:
No Fiscal Impact
AQ "T:jj�
4ohn S. Rai mo d, omas J. Wilson
irector omhTAity and Economic Development Ass scant City Manager
David H. Ready, Exec Ir for
Attachments:
1. Resolution
2. Non Disturbance and Attornment Agreement
RESOLUTION NO.
A RESOLUTION OF THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF
PALM SPRINGS, CALIFORNIA, APPROVING A
NON-DISTURBANCE AND ATTORNMENT
AGREEMENT BY AND AMONG THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF
PALM SPRINGS, ENDURE INVESTMENTS LLC, A
NEVADA LIMITED LIABILITY COMPANY, GEIGER
LLC, A CALIFORNIA LIMITED LIABILITY COMPANY
AND HOME DEPOT U.S.A., INC., A DELAWARE
CORPORATION
THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM
SPRINGS DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. Approve a Non-Disturbance and Attornment Agreement by and
among the Community Redevelopment Agency of the City of Palm Springs,
Endure Investments LLC, a Nevada limited liability company, Geiger LLC, a
California limited liability company, and Home Depot U.S.A., Inc., a Delaware
Corporation.
SECTION 2. The Executive director or his designee is hereby authorized to
execute all documents related to the Agreement.
ADOPTED THIS day of 2007.
AYES:
NOES:
ABSENT:
ABSTAIN:
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM
SPRINGS, CALIFORNIA
Chairman
ATTEST:
James Thompson, Assistant Secretary 1 "
Resolution No.
Page 2
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, JAMES THOMPSON, Assistant Secretary of the Community Redevelopment
Agency of the City of Palm Springs, hereby certify that Resolution No. _ is a
full, true and correct copy, and was duly adopted at a regular meeting of the
Community Redevelopment Agency of the City of Palm Springs on
by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
James Thompson, Assistant Secretary
Community Redevelopment Agency of
the City of Palm Springs, California
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When recorded, return to:
Robert H. Nagle, Esq. (cas)
Nagle Law Group, P.C.
4530 East Shea Boulevard
Suite 140
Phoenix Arizona 85028
Re: Store No. 8526
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS NON-DISTURBANCE AND ATTORNMENT AGREEMENT (the "Agreement")
is made as of this day of 2007, by and among COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS ("Agency"), whose
address is 3200 East Tahquitz Canyon Way, Palm Springs, CA 92263, Attention: -Executive
Director, ENDURE INVESTMENTS, LLC, a Nevada limited liability company ("Landlord"),
having an address of 1888 Century Park East #450, Los Angeles, CA 90067, GEIGER LLC, a
California limited liability company ("Geiger"), having an address of 1888 Century Park East
#450, Los Angeles, CA 90067, and HOME DEPOT U.S.A., INC., a Delaware corporation
("Tenant'), having an address of 2455 Paces Ferry Road, Atlanta, Georgia 30339.
WHEREAS, Agency and Geiger have entered into that certain Disposition and
Development Agreement, dated December 12, 2005 (such document, and any past and future
amendments to same, being the "DDA"), pursuant to which Geiger has purchased certain real
property from the Agency and under which Geiger is obligated to develop and operate a retail
shopping center on the real property located at the Northeast corner of Ramon Road and Gene
Autry Trail, in the City of Palm Springs, County of Riverside, State of California and more
particularly described on Exhibit "A" attached hereto and made a part hereof (the "Shopping
Center Land").
WHEREAS, Geiger has conveyed all of its interest in the Shopping Center Land to
Landlord.
WHEREAS, Agency has certain rights and remedies under the DDA, including, but not
limited to, a right to acquire all or portions of the Shopping Center Land in the event Geiger
and/or Landlord fails to perform certain obligations under the DDA.
WHEREAS, Landlord has entered into a lease agreement with Home Depot (the "Home
Depot Lease Agreement") to lease and demise to Home Depot that portion of the Shopping
Center Land more particularly described on Exhibit "B" attached hereto and made a part hereof
(hereinafter referred to as the "Premises")_ Home Depot intends to construct certain buildings
and improvements on the Premises in accordance with plans and specifications provided by
Home Depot and to operate a Horne Depot store on the Premises.
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WHEREAS, Landlord has entered into a development agreement with Home Depot (the
"Home Depot Development Agreement") under which Landlord is obligated to construct certain
site improvements on, under and about the Shopping Center Land for the benefit of Home Depot
and other expected commercial businesses and in accordance with plans and specifications
approved by Home Depot.
WHEREAS, Landlord and Home Depot has entered into a Restriction and Easement
Agreement or to be recorded in the real estate records of the County of Riverside, California
("REA") under which such certain easements, covenants and restrictions have been imposed on
the Shopping Center Land for the benefit of certain owners, tenants and other occupants of the
parcels making up the retail shopping center to be developed and operated on the Shopping
Center Land.
NOW THEREFORE, in consideration of the mutual promises and covenants herein
contained and other good and valuable consideration, the receipt of which are hereby
acknowledged, the parties agree as follows:
1. Agency recognizes that Home Depot has certain rights and obligations under- the
Home Depot Lease Agreement, the Home Depot Development Agreement, and the REA
(collectively the "Operating Documents")- Agency will not take any action to terminate, bar, cut
off or otherwise disturb Home Depot's leasehold estate in the Premises and any other right, title,
interest or benefit of, or conferred upon, Home Depot or the Premises under the Operating
Documents by reason of any default of Geiger and/or Landlord under the terms of the DDA or
by reason of the exercise of any right or remedy of the Agency under the terms of the DDA.
Such leasehold estate and all other rights, titles, interests, and benefits of Home Depot and the
Premises arising under the Operating Docurents will survive, and will not be affected in any
manner by the acquisition of all or any portion of the Shopping Center Land by the Agency,
whether pursuant to the DDA or otherwise, or by any expiration or termination of the DDA or by
the exercise of any right or remedy of the Agency under the terms of the DDA, subject to Home
Depot performing all of its obligations under the Operating Docurnnents.
2. In the event the Agency acquires fee title to the Premises from Landlord, whether
pursuant to the DDA or otherwise, and subject to Agency's compliance with the obligations of
the "Landlord" under the Home Depot Lease Agreement arising from and after the date of such
acquisition, Horne Depot shall attorn to and recognize Agency as the successor landlord under
the Home Depot Lease Agreement. In such event, Agency shall accept such attonnunent and shall
recognize the Home Depot Lease Agreement as a direct lease between Home Depot and Agency.
Home Depot agrees that upon receipt of written notice from Agency enclosing the deed or court
order transferring fee ownership of the Premises to Agency, all rent payments thereafter due
under the Home Depot Lease Agreement shall be paid directly to Agency an¢ credited against
the rent due under the Home Depot Lease Agreement. Each party agrees to promptly execute and
deliver each to the other any documents the other may reasonably request to evidence such
attomment. Upon and after such attonnment, the Home Depot Lease Agreement shall continue in
full force and effect as a direct lease between Agency and home Depot upon all the terms,
conditions and covenants as are set forth in said Home Depot Lease Agreement, subject to the
following provisions:
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5384061
a. No Affect on Liability of Landlord. Nothing in this paragraph 2 shall be
deemed to limit Home Depot's rights against Landlord in the event of a
default by Landlord under the Operating Documents.
b. Agency shall not be liable for any act or omission of any prior landlord
and Home Depot shall look only to the interest of Agency in the Premises
(if and when acquired from the Landlord) for the satisfaction of any
obligations of Agency as successor to Landlord-
C. Agency shall not be subject to or liable for any offsets or defenses which
Home Depot might have against any prior landlord, except for: (1) offsets
or defenses for a breach by any prior landlord that Agency received a copy
of prior to the date of Agency's acquisition of fee title to the Premises and
(2) other offsets and defenses that cumulatively are equal to or less than
one twelfth (1/12) of the Rent ("Rent" means Rent as defined in the Home
Depot Lease Agreement).
d. For purposes of this Agreement and otherwise, Agency shall not be bound
by any amendment of the Operating Documents, or any part thereof,
unless consented to in writing by Agency, but Agency will be bound by
any written consent granted by a prior landlord in accordance with the
Operator Documents before Agency has acquired fee title to the Premises.
e. if Agency acquires fee title to the Premises, Agency shall be discharged
from all responsibility arising under the Home Depot Lease Agreement
after disposing of its interest in the Premises. If Agency acquires fee title
to any other portion of the Shopping Center Land, Agency shall be
discharged from all responsibility arising under the other Operating
Documents after disposing of any interest in the Shopping Center Land.
f Agency shall incur no responsibility for any security deposits which were
paid by Home Depot to any landlord-
9- Agency shall not be bound under any notice given by Home Depot to any
landlord unless notice is also given concurrently to Agency.
h. Home Depot shall not pay, and Agency shall not be bound by, any rent or
other periodic payments to any landlord for more than thirty (30) days in
advance of the current month.
i. Home Depot shall comply with all envirommental conditions contained in
the Home Depot Lease Agreement-
a. In the event of a default by Geiger and/or Landlord under the terms and
conditions of the DDA, in addition to any other notice required to be given pursuant to said
3 C"r)r) 7
5384061
DDA, Agency shall provide Home Depot with a copy of any written notice of default which
Agency gives to Geiger and/or Landlord_ In the event of a default by Landlord under the tenors
and conditions of the Operating Documents, in addition to any other notice required to be given
pursuant to said Operating Documents, Home Depot shall provide Agency with a copy of any
written notice of default which Home Depot gives to Landlord; provided, however, that such
requirement shall remain in effect only so long as Agency has a right of reversion or a
repurchase option with respect to the Premises under the DDA.
4. Geiger and Landlord hereby agree for itself and its respective successors and
assigns, that (i) this Agreement does not (a) constitute a waiver by Agency of any of its rights
against Geiger and/or Landlord under the DDA or any of the other transaction documents and (b)
in any way release Geiger and/or Landlord from its obligation to comply with the terms,
provisions, conditions, covenants, agreements and clauses of the DDA and the transaction
documents, and (ii) the provisions of the DDA and the other transaction documents remain in full
force and effect and must be complied with by Geiger and/or Landlord.
5. All notices or requests under this Agreement shall be given by certified mail to
the addresses shown on page one of this Agreement. Each properly addressed notice or request
sent by certified mail shall be deemed given and served upon being deposited in the United
States mail, postage prepaid.
6. Nothing contained in this Agreement shall be interpreted or construed to alter or
amend the terms and conditions of the DDA as between Geiger and the Agency, it being the
intention of the parties that Geiger's and/or Landlord's rights, duties and obligations shall be
controlled exclusively by said DDA.
7. This Agreement may be executed simultaneously or in counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
4
538406 1
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the day
and year above set forth.
GETGER:
GEIGER LLC,
a California limited liability company
By: Jolm J. Carroll IV Inc.
Its: Managing Member
By:
Name: John J. Carroll IV
Title: President
LANDLORD:
ENDURE INVESTMENTS, LLC,
a Nevada limited liability company
By: Excel Property Management Services Inc.
Its: Managing Member
By:
Name: Mark Gabay
Title: President
TENANT:
HOME DEPOT U.S.A., INC.,
a Delaware corporation
By:
Name:
Title:
5
S18d0 F 1
AGENCY:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
By:
Name:
Its:
ATTEST:
By: Approved by the Community
Assistant Secretary Redevelopment Agency by Resolution
No. on
APPROVED AS TO FORM
Office of Agency Counsel
By:
Agency Counsel
!l•n FT
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53$4061
STATE OF CALIFORNIA )
)ss.
COUNTY OF ORANGE )
On 2007, before me, a
Notary Public in and for the State of California, 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.
SIGNATURE OF NOTARY PUBLIC
(SEAL)
STATE OF CALIFORNIA )
)ss.
COUNTY OF )
On 2007, before me, a
Notary Public in and for the State of California, personally appeared
, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) Ware 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.
SIGNATURE OF NOTARY PUBLIC
(SEAL)
7
57X405 1
STATE OF CALIFORNIA )
)ss.
COUNTY OF )
On 2007, before me, a
Notary Public in and for the State of California, personally appeared
, personally known to me (or proved to nee 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/tbeir
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.
SIGNATURE OF NOTARY PUBLIC
(SEAL)
STATE OF CALIFORNIA )
)ss.
COUNTY OF )
On 2007, before me, a
Notary Public in and for the State of California, 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.
SIGNATURE OF NOTARY PUBLIC
(SEAL)
8
538406 1
EXHIBIT"A"
Legal Description of the Sh000ins Center
THAT PORTION OF PARCELS 1 AND 2, REMAINDER PARCEL AND LOTS `B" AND
"C" OF PARCEL MAP NO. 18787 ON FILE IN BOOK 135 OF PARCEL MAPS, PAGES 53
AND 54, OFFICIAL RECORDS OF RIVERSIDE COUNTY, STATE OF CALIFORNIA.
BEGINNING AT THE NORTHEAST CORNER OF SAID REMAINDER PARCEL;
THENCE SOUTH 89046'26" WEST 1321.19 FEET ALONG THE NORTH LINE OF SAID
REMAINDER PARCEL;
THENCE SOUTH 00013'20" EAST 463.66 FEET ALONG TIIE NORTH LINE OF SAID
REMAINDER PARCEL TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE
SOUTHWESTERLY AND IIAVING A RADIUS OF 3625.46 FEET, A LINE RADIAL TO
SAID POINT BEARS SOUTH 78021'45" WEST;
THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE
OF 138.94 FEET THROUGH A CENTRAL ANGLF. OF 0201 V45", A LINE RADIAL TO
SAID CURVE AT SAID POINT BEARS NORTH 80033'30" EAST;
THENCE SOUTH 89048'13" WEST 19.24 FEET TO THE BEGINNING OF A NON-
TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4900.00
FEET, A LINE RADIAL TO SAID POINT BEARS SOUTH 82003'46" WEST;
THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE
OF 640.89 FEET THROUGH A CENTRAL ANGLE OF 07029'38", TO A REVERSE CURVE
CONCAVE EASTERLY AND HAVING RADIUS OF 20.00 FEET, A LINE RADIAL TO
SAID CURVE AT SAID POINT BEARS NORTH 89033'24" EAST;
THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE
OF 31.33 FEET THROUGH A CENTRAL ANGLE OF 89'45'11';
THENCE NORTH 89048'13" EAST 176.58 FEET TO THE BEGINNING OF A TANGENT
CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 33.00 FEET;
THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE
OF 23.35 FEET THROUGH A CENTRAL ANGLE OF 40032'09", TO A REVERSE CURVE
CONCAVE NORTHEASTERLY AND HAVING RADIUS OF 17.00 FEET, A LINE RADIAL
TO SAID CURVE AT SAID POINT BEARS NORTH 40°20'22" EAST;
THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE
OF 12.03 FEET THROUGH A CENTRAL ANGLE OF 40°32'09';
THENCE NORTH 89048'13" EAST 1020.11 FEET TO THE BEGINNING OF A TANGENT
CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 20.00 FEET;
THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE
OF 31.39 FEET THROUGH A CENTRAL ANGLE OF 89055'56";
THENCE NORTH 00007'43" WEST 1251.86 FEET ALONG EAST LINE OF SAID PARCEL
2 AND REMAINDER PARCEL TO THE POINT OF BEGINNING.
538406 i
EXHIBIT"B"
Leaal Descrintioll of Premises
IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA
BEING THAT PORTION OF THE REMAINDER PARCEL AS SHOWN ON PARCEL MAP
NO. 18787 ON FILE IN BOOK 135, PAGES 53 AND 54 OF PARCEL MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SAID REMAINDER PARCEL;
THENCE, ALONG THE NORTH LINE OF SAID REMAINDER PARCEL, SOUTH
89046'26" WEST, 21.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE
LEAVING SAID NORTH LINE THE FOLLOWING FIVE (5) COURSES:
1, SOUTH 00007'43" EAST, 695.78 FEET;
2. SOUTH 89052'52" WEST, 268.83 FEET;
3. SOUTH 70030'49" WEST, 303.86 FEET;
4, SOUTH 89058'47" WEST, 122.86 FEET;
5. NORTH 00001'36" WEST, 795.07 FEET TO SAID NORTH LINE;
ALONG SAID NORT14 LINE, NORTH 89°46'26" EAST, 676.96 FEET TO THE. TRUE
POINT OF BEGINNING.
THE ABOVE DESCRIBED PARCEL CONTAINS 11.43 ACRES, MORE OR LESS.
539406.1