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HomeMy WebLinkAboutA7292 - EHOF CANYON VIEW LLC - SETTLEMENT AGREEMENT & FUNDING OF FUTURE COSTS OF OFF-SITE IMPROVEMENTS 1 City Council Minutes May 22, 2019 F. RESOLUTION OF INTENTION TO LEVY ASSESSMENTS FUNDING THE PALM SPRINGS SMALL HOTEL TOURISM BUSINESS IMPROVEMENT DISTRICT AND SETTING A TIME AND PLACE FOR THE PUBLIC HEARING MOTION BY MAYOR PRO TEM KORS, SECOND BY COUNCILMEMBER MIDDLETON,CARRIED 5-0,to adopt Resolution No.24600 entitled"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, DECLARING ITS INTENTION TO LEVY ASSESSMENTS FUNDING THE PALM SPRINGS SMALL HOTEL TOURISM BUSINESS IMPROVEMENT DISTRICT,AND SETTING A TIME AND PLACE FOR PUBLIC HEARING." G. APPROVAL OF A DEPOSIT' AGREEMENT TO PAY FOR CONSULTING SERVICES FOR FORMATION OF CANYON VIEW DEVELOPMENT COMMUNITY FACILITIES DISTRICT FOR CERTAIN DEFERRED PUBLIC IMPROVEMENTS MOTION BY MAYOR PRO TEM KORS, SECOND BY COUNCILMEMBER MIDDLETON, CARRIED 5-0,to: 1. Approve a Deposit Agreement with EHOF Canyon View, LLC, a Delaware limited liability company,relating to professional consulting costs required in the formation of a Community Facilities District for financing of certain deferred public improvements required for Vesting Tentative Tract Map 36969,the"Canyon View"project. 2. Authorize the City Manager to execute all necessary documents. H. PROGRAM SUPPLEMENTAL AGREEMENT NO. M014-RI WITH THE STATE OF CALIFORNIA FOR USE OF REGIONAL SURFACE TRANSPORTATION PROGRAM (RSTP) FUNDS AND NATIONAL HIGHWAY PERFORMANCE (NHPP) FUNDS AS PART OF THE HIGHWAY BRIDGE PROGRAM(HPB) FOR THE INDIAN CANYON DRIVE WIDENING&BRIDGE REPLACEMENT,CP 01- 11,FEDERAL-AID PROJECT NO. BRLO 5282(017) MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY COUNCILMEMBER HOLSTEGE, CARRIED 5-0,to: 1. Adopt Resolution No. 24603 entitled "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING PROGRAM SUPPLEMENT AGREEMENT NO. M014-RI TO ADMINISTERING AGENCY- STATE AGREEMENT FOR FEDERAL-AID PROJECT NO. 08-5282F15 WITH THE STATE OF CALIFORNIA, IN THE AMOUNT OF $759,587 FOR USE OF REGIONAL SURFACE TRANSPORTATION PROGRAM (RSTP) FUNDS AND NATIONAL HIGHWAY PERFORMANCE (NHPP) FUNDS AS PART OF THE HIGHWAY BRIDGE PROGRAM (HPB) FOR THE INDIAN CANYON DRIVE WIDENING & BRIDGE REPLACEMENT, CP 01-11, FEDERAL AID PROJECT NO. BRLO 5282(017)." 2. Authorize the City Manager to execute all necessary documents. City of Palm Springs Page 5 ALL ACTIONS ARE DRAFT PENDING APPROVAL OF THE FINAL MINUTES Wed,12 Jun 2019 17:40:58 I DEPOSIT AGREEMENT This DEPOSIT AGREEMENT (this "Agreement") is entered into on June 10, 2019, between the CITY OF PALM SPRINGS, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (the "City") and EHOF CANYON VIEW, LLC, a Delaware limited liability company (the "Developer"). BACKGROUND : 1. The Developer and the City have entered into a Settlement Agreement and General Release dated January 31, 2019 (the "Settlement Agreement"), relating (among other things)to the funding of future costs of certain off-site public improvements including the undergrounding of utilities, widening of and other improvements to East Palm Canyon Drive (the "Deferred Improvements"). 2. Pursuant to the Settlement Agreement the City has elected to finance the construction of the Deferred Improvements through the establishment of a community facilities improvement district (the "CFD") under the Mello-Roos Community Facilities Act of 1982 (the "Act"). 3. The Developer is obligated under the Settlement Agreement to pay the costs of forming the CFD and otherwise implement the procedures set forth in the Act relating to the formation of the CFD. 4. The Developer and the City wish to enter into this Agreement for the purpose of specifying the terms relating to the deposit and application of funds by the Developer to pay the costs of forming the CFD under the Act. AGREEMENT: In consideration of the foregoing and the material covenants hereinafter contained, the City and the Developer formally covenant, agree and bind themselves as follows: Section 1. Initial Deposit:Additional Advances. The Developer is, concurrently with its execution of this Agreement, delivering to the City $36,000.00 (the "Initial Deposit"), to be used by the City to pay the costs in conducting proceedings for the formation of the CFD under the Act as more fully described in Section 2(a) below (the "Initial Costs"). The Initial Deposit shall be made in the form of a check made payable to the "City of Palm Springs." The City, by its execution hereof, acknowledges receipt by the City of the Initial Deposit. The check representing the Initial Deposit will be cashed by the City. The Developer hereby agrees to advance any additional amounts necessary to pay any Initial Costs incurred by the City in excess of the amount of the Initial Deposit (the "Additional Deposits" and, collectively with the Initial Deposit, the "Deposits"), promptly upon written demand therefore by the Finance Director of the City; provided that the total -1- amount of the Deposits shall not exceed $41,000 without the prior written consent of the Developer. Notwithstanding the foregoing, the City Manager may direct City staff and consultants to cease all work related to the formation of the CFD until any Additional Deposits so demanded has been received by the City. The Deposits may be commingled with other funds of the City for purposes of investment and safekeeping, but the City shall at all times maintain complete and accurate records showing the expenditures which are made from the Deposits. Section 2. Use of the Deposits. The Deposits shall be administered as follows: (a) Payment of Initial Costs. The Finance Director of the City may draw upon the Deposits from time to time to pay the Initial Costs, including but not limited to the following: (i) the fees and expenses of any consultants to the City employed in connection with the formation of the CFD, including;without limitation engineers, legal counsel (including the City Attorney and special counsel), financial advisors, and special tax consultants); (ii) the costs of appraisals, market absorption and feasibility studies and other reports necessary or deemed advisable by City staff or consultants in connection with the formation of the CFD; (iii) costs of publication of notices, recordation of documents, preparation and mailing of ballots and other costs related to any election with respect to the formation of the CFD; (iv) a reasonable charge for City staff time, as determined by the City Manager in his sole discretion, in analyzing the CFD, including without limitation a reasonable allocation of City overhead expense related thereto; and (v) any and all other actual costs and expenses incurred by the City with respect to the CFD after the date of execution of this Agreement. (b) Return of Unexpended Deposits Upon Completion'of CFD Formation. Not later than 10 business days following the effective date of the special tax ordinance for the CFD, the Finance Director of the City shall return the then unexpended Deposits to the Developer, without interest, less an amount equal to any Initial Costs incurred by the City, or that the City is otherwise committed to pay, that have not yet been so paid. (c) Return of Unexpended Deposits Upon Abandonment of CFD Proceedings. If the proceedings to form the CFD are abandoned for any reason pursuant to the mutual agreement of the City and the Developer, the Finance Director of the City shall, within 10 business days after adoption by the City Council of a resolution-stating the intent of the City to terminate proceedings under the Act with respect to the CFD, return any then- unexpended Deposits to the Developer, without interest, less an amount equal to any -2- Initial Costs incurred by the City, or that the City is otherwise committed to pay, that have not yet been so paid. Section 3. Agreement Not Debt or Liability of City or Authority. It is hereby acknowledged and agreed that this Agreement is not a debt or liability of the City, as provided in Section 53314.9(b) of the Act. The City shall in no event be liable hereunder other than to return the unexpended and uncommitted portions of the Deposits as provided in Section 2 and provide an accounting under Section 4. The City shall not be obligated to advance any of its own funds to reimburse the Developer for any amounts under this Agreement, to pay any costs associated with the formation of the CFD, or for any of the Initial Costs. No member of the City Council, and no officer, employee or agent of the City, shall to any extent be personally liable hereunder. Section 4. Accountinq. The Finance Director of the City shall provide the Developer with a written accounting of the expenditure of the Deposits within 10 business days of receipt by the Finance Director of the City of a written request therefor submitted by an authorized officer of the Developer. No more than one accounting will be provided in any calendar month and the cost of providing all accountings shall be charged to the Deposits. Section 5. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. Section 6. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. Section 7. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. . ` :. y ;;--,F� -3- I IN WITNESS THEREOF, the parties hereto have executed this Agreement as of the day and year written alongside their signature line below. Date: June 10, 2019 CITY OF PALM SPRINGS By M�II David H. Read h.D. City Manager APPROVED AS TO FORM: Jeffr Ballinger City Attorney ATTEST: Ant t6y . Me" , MMC Ci erk Date: June 10, 2019 EHOF CANYON VIEW, LLC APPROVED BY CITY COUNCIL By nr_��1, 1� G12�2 Name Title Qx P -4- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of Capornia , ', n'• ) County ofy�lil (,lys� ) On�1� - �I , ��' I before me, (/ , Date Heroused Name and Title of a Officer personally appeared 6_LrN_v-- e(s,46f Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PTzNA-L-TY OF PERJURY under the laws of the State California that the foregoing paragraph CARA IVY NEWMAN is true and orre " - Notary Pubiic-California WITNES hand n official seal. = �#= San Francisco County > -' Commission#2279258 My Comm.Expires Mar 1,2: 2 Signat e _ Signature f Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑Attorney in Fact ❑ Individual ❑Attorney in Fact ❑Trustee ❑ Guardian or Conservator ❑Trustee ❑ Guardian or Conservator ❑Other: ❑ Other: Signer Is Representing: Signer Is Representing: 02014 National Notary Association •www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item #5907 DEPOSIT AGREEMENT This DEPOSIT AGREEMENT (this "Agreement") is entered into on June 10, 2019, between the CITY OF PALM SPRINGS, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (the "City") and EHOF CANYON VIEW, LLC, a Delaware limited liability company (the "Developer"). BACKGROUND : 1. The Developer and the City have entered into a Settlement Agreement and General Release dated January 31, 2019 (the "Settlement Agreement"), relating (among other things)to the funding of future costs of certain off-site public improvements including the undergrounding of utilities, widening of and other improvements to East Palm Canyon Drive (the "Deferred Improvements"). 2. Pursuant to the Settlement Agreement the City has elected to finance the construction of the Deferred Improvements through the establishment of a community facilities improvement district (the "CFD") under the Mello-Roos Community Facilities Act of 1982 (the "Act"). 3. .The Developer is obligated under the Settlement Agreement to pay the costs of forming the CFD and otherwise implement the procedures set forth in the Act relating to the formation of the CFD. 4. The Developer and the City wish to enter into this Agreement for the purpose of specifying the terms relating.to the deposit and application of funds by the Developer to pay the costs of forming the CFD under the Act. AGREEMENT: In consideration of the foregoing and the material covenants hereinafter contained, the City and the Developer formally covenant, agree and bind themselves as follows: Section 1. Initial Deposit:Additional Advances. The Developer is, concurrently with its execution of this Agreement, delivering to the City $36,000.00 (the "Initial Deposit"), to be used by the City to pay the costs in conducting proceedings for the formation of the CFD under the Act as more fully described in Section 2(a) below (the "Initial Costs"). The Initial Deposit shall be made in the form of a check made payable to the "City of Palm Springs." The City, by its execution hereof, acknowledges receipt by the City of the Initial Deposit. The check representing the Initial Deposit will be cashed by the City. The Developer hereby agrees to advance any additional amounts necessary to pay any Initial Costs incurred by the City in excess of the amount of the Initial Deposit (the "Additional Deposits" and, collectively with the Initial Deposit, the "Deposits"), promptly upon written demand therefore by the Finance Director of the City; provided that the total -1- amount of the Deposits shall not exceed $41,000 without the prior written consent of the Developer. Notwithstanding the foregoing, the City Manager may direct City staff and consultants to cease all work related to the formation of the CFD until any Additional Deposits so demanded has been received by the City. The Deposits may be commingled with other funds of the City for purposes of investment and safekeeping, but the City shall at all times maintain complete and accurate records showing the expenditures which are made from the Deposits. Section 2. Use of the Deposits. The Deposits shall be administered as follows: (a) Payment of Initial Costs. The Finance Director of the City may draw upon the Deposits from time to time to pay the Initial Costs, including but not limited to the following: (i) the fees and expenses of any consultants to the City employed in connection with the formation of the CFD, including without limitation engineers, legal counsel (including the City Attorney and special counsel), financial advisors, and special tax consultants); (ii) the costs of appraisals, market absorption and feasibility studies and other reports necessary or deemed advisable by City staff or consultants in connection with the formation of the CFD; (iii) costs of publication of notices, recordation of documents, preparation and mailing of ballots and other costs related to any election with respect to the formation of the CFD; (iv) a reasonable charge for City staff time, as determined by the City Manager in his sole discretion, in analyzing they CFD, including without limitation a reasonable allocation of City overhead expense related thereto; and (v) any and all other actual costs and expenses incurred by the City with respect to the CFD after the date of execution of this Agreement. (b) Return of Unexpended Deposits Upon Completion ,of CFD Formation. Not later than 10 business days following the effective date of the special tax ordinance for the CFD, the Finance Director of the City shall return the then unexpended Deposits to the Developer, without interest, less an amount equal to any Initial Costs incurred by the City, or that the City is otherwise committed to pay, that have not yet been so paid. (c) Return of Unexpended Deposits Upon Abandonment of CFD Proceedings. . If the proceedings to form the CFD are abandoned for any reason pursuant to the mutual agreement of the City and the Developer, the Finance Director of the City shall, within 10 business days after adoption by the City Council of a resolution stating the intent of the City to terminate proceedings under the Act with respect to the CFD, return any then- unexpended Deposits to the Developer, without interest, less an amount equal to any -2- f � Initial Costs incurred by the City, or that the City is otherwise committed to pay, that have not yet been so paid. Section 3. Agreement Not Debt or Liability of City or Authority. It is hereby acknowledged and agreed that this Agreement is not a debt or liability of the City, as provided in Section 53314.9(b) of the Act. The City shall in no event be liable hereunder other than to return the unexpended and uncommitted' portions of the Deposits as provided in. Section 2 and provide an accounting under Section 4. The City shall not be obligated to advance any of its own funds to reimburse the Developer for any amounts under this Agreement, to pay any costs associated with the formation of the CFD, or for any of the Initial Costs. No member of the City Council, and no officer, employee or agent of the City, shall to any extent be personally liable hereunder. Section 4. Accounting. The Finance Director of the City shall provide the Developer with a written accounting of the expenditure of the Deposits within 10 business days of receipt by the Finance Director of the City of a written request therefor submitted by an authorized officer of the Developer. No more than one accounting will be provided in any calendar month and the cost of providing all accountings shall be charged to the Deposits. Section 5. Severability. If any part of this Agreement is. held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. Section 6. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. Section 7. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. -3- IN WITNESS THEREOF, the parties hereto have executed this Agreement as of the day and year written alongside their signature line below. Date: June 10, 2019 CITY OF PALM SPRINGS 7iB y �David H. Rea D. City Manager APPROVED AS TO FORM: Jeffrey allinger City Attorney AT T ST: W Anthony J. fkbjia, M City Date: June 10, 2019 EHOF CANYON VIEW, LLC APPROVED BY CITY COUNCIL By—/; Name Title "bK-..Zd -4- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California ) County of�Y.lY` SLC7 /}► ) On before me Date H e nsert Name and itle of th fficer personally appeared 62d.L- Narqe(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAALTY OF PERJURY under the laws of the State Califor is that_the foregoing paragraph is true an correct. . CARA IVY NEWMAN Notary Public California WITNE my h d official seal�� San Francisco County > Commission p 2279258 My comm.Expires Mar 1,2023 Signa ure nature of otary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer — Title(s): ❑Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑Attorney in Fact ❑ Individual ❑Attorney in Fact ❑Trustee ❑ Guardian or Conservator ❑Trustee ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: Signer Is Representing: ©2014 National Notary Association - www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907 ,ppLM sAi 4 PUBLIC INTEGRITY DISCLOSURE .V N tee,, •' APPLICANT DISCLOSURE FORM CQt/FORN`P 1. Name of Entity EHOF CANYON VIEW, LLC 2. Address of Entity(Principle Place of Business) ONE LETTERMAN DRIVE, BLDG C, SUITE 3800,SAN FRANCISCO,CA 94129 Local or California Address(if different than#2} 4. State where Entity is Registered with Secretary of State DELAWARE If other than California, is the Entity also registered in California?fN Yes No 5. Type of Entity ❑Corporation [X-]Limited Liability Company ❑Partnership ❑Trust ❑Other(please specify) 6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: /f any response is not a.natural person, please identify a# ofcers, directors, members, managers and other fiduciaries for the member, manager, trust or other entity ENCORE HOUSING OPPORTUNITY FUND II GENERAL PARTNER,LLC ❑Officer ❑Director []Member ®Manager [name] nY �, A JC� f1, i� ph ��,J I �V��`%� ❑General Partner ❑Limited Partner ChtliSm�tY,l ll�c Val LaZ ❑Other __ ___ _.________ ❑Officer ❑Director ❑Member ❑Manager (name] ❑General Partner ❑Limited Partner ❑Other _.. ._T_. ____.. ❑Officer ❑Director ❑Member ❑Manager (name] ❑General Partner ❑Limited Partner ❑Other CITY OF PALM SPRINGS-PUBLIC INTEGRITY DISCLOSURE APPLICANT DISCLOSURE FORM Page 1 of 2 (Revised 09 13 18) 8 ATTACHMENT 1 .......... _--_—___--- 7. Owners/Investors with a 5%beneficial interest in the Applicant Entity or a related entity EXAMPLE LANE DOE 50%ABC COMPANY, Inc. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] A. LLL [name of owner/investor] [percentage of beneficial interest in entity _ and name of entity] B. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] C. r LI of f hC(NL' �(BSI 11�j D ►i--�( 'L C, [narne.of owner/investor] (percentage of beneficial interest in entity and name of entity] D. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] E. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT. Signa f Disclosing Party,Printed Name,Title Date V z COD CITY OF PALM SPRINGS—PUBLIC INTEGRITY DISCLOSURE FORM APPLICANT DISCLOSURE FORM Page 2 of 2 (Revised 09 13.18) 9 CONTRACT ABSTRACT 2 Originals: Agreement Contract Company Name: EHOF Canyon View, LLC Company Contact: Oscar Vazquez Summary of Services: Settlement Agreement and funding of future costs of Off-Site Improvements Contract Price: $36,000 (initial deposit) Funding Source: Developer Contract Term: Contract Administration Lead Department: Assistant City Manager Contract Administrator: Marcus Fuller Contract Approvals Council Approval: May 22, 2109, 1.G. Resolution Number: N/A Agreement Number: k-7 21 2 Contract Compliance Exhibits: Attached y Signatures: Attached 71 Insurance: N/A -R CO Bonds: N/A Contract Prepared By: Marcus Fuller Submitted on: 06/12/2019 By: Wed,12 Jun 2019 17:49:24 City Council Minutes May 22, 2019 F. RESOLUTION OF INTENTION TO LEVY ASSESSMENTS FUNDING THE PALM SPRINGS SMALL HOTEL TOURISM BUSINESS IMPROVEMENT DISTRICT AND SETTING A TIME AND PLACE FOR THE PUBLIC HEARING MOTION BY MAYOR PRO TEM KORS, SECOND BY COUNCILMEMBER MIDDLETON,CARRIED 5-0,to adopt Resolution No.24600 entitled"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, DECLARING ITS INTENTION TO LEVY ASSESSMENTS FUNDING THE PALM SPRINGS SMALL HOTEL TOURISM BUSINESS IMPROVEMENT DISTRICT,AND SETTING A TIME AND PLACE FOR PUBLIC HEARING." G. APPROVAL OF A DEPOSIT*AGREEMENT TO PAY FOR CONSULTING SERVICES FOR FORMATION OF CANYON VIEW DEVELOPMENT COMMUNITY FACILITIES DISTRICT FOR CERTAIN DEFERRED PUBLIC IMPROVEMENTS MOTION BY MAYOR PRO TEM KORS, SECOND BY COUNCILMEMBER MIDDLETON, CARRIED 5-0,to: 1. Approve a Deposit Agreement with EHOF Canyon View, LLC, a Delaware limited liability company,relating to professional consulting costs required in the formation of a Community Facilities District for financing of certain deferred public improvements required for Vesting Tentative Tract Map 36969,the"Canyon View"project. 2. Authorize the City Manager to execute all necessary documents. H. PROGRAM SUPPLEMENTAL AGREEMENT NO. M014-RI WITH THE STATE OF CALIFORNIA FOR USE OF REGIONAL SURFACE TRANSPORTATION PROGRAM (RSTP) FUNDS AND NATIONAL HIGHWAY PERFORMANCE (NHPP) FUNDS AS PART OF THE HIGHWAY BRIDGE PROGRAM(HPB)FOR THE INDIAN CANYON DRIVE WIDENING&BRIDGE REPLACEMENT,CP 01- 11,FEDERAL-AID PROJECT NO.BRLO 5282(017) MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY COUNCILMEMBER HOLSTEGE, CARRIED 5-0,to: 1. Adopt Resolution No. 24603 entitled "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING PROGRAM SUPPLEMENT AGREEMENT NO. M014-R1 TO ADMINISTERING AGENCY- STATE AGREEMENT FOR FEDERAL-AID PROJECT NO. 08-5282F15 WITH THE STATE OF CALIFORNIA, IN THE AMOUNT OF $759,587 FOR USE OF REGIONAL SURFACE TRANSPORTATION PROGRAM (RSTP) FUNDS AND . NATIONAL HIGHWAY PERFORMANCE (NHPP) FUNDS AS PART OF THE HIGHWAY BRIDGE PROGRAM (HPB) FOR THE INDIAN CANYON DRIVE WIDENING & BRIDGE REPLACEMENT, CP 01-11, FEDERAL AID PROJECT NO. BRLO 5282(017)." 2. Authorize the City Manager to execute all necessary documents. City of Palm Springs Page 5 ALL ACTIONS ARE DRAFT PENDING APPROVAL OF THE FINAL MINUTES Wed,12 Jun 2019 17:40:58 DEPOSIT AGREEMENT This DEPOSIT AGREEMENT (this "Agreement") is entered into on June 10, 2019, between the CITY OF PALM SPRINGS, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (the "City") and EHOF CANYON VIEW, LLC, a Delaware limited liability company (the "Developer"). BACKGROUND : 1. The Developer and the City have entered into a Settlement Agreement and General Release dated January 31, 2019 (the "Settlement Agreement"), relating (among other things)to the funding of future costs of certain off-site public improvements including the undergrounding of utilities, widening of and other improvements to East Palm Canyon Drive (the "Deferred Improvements"). 2. Pursuant to the Settlement Agreement the City has elected to finance the construction of the Deferred Improvements through the establishment of a community facilities improvement district (the "CFD") under the Mello-Roos Community Facilities Act of 1982 (the "Act"). 3. The Developer is obligated under the Settlement Agreement to pay the costs of forming the CFD and otherwise implement the procedures set forth in the Act relating to the formation of the CFD. 4. The Developer and the City wish to enter into this Agreement for the purpose of specifying the terms relating to the deposit and application of funds by the Developer to pay the costs of forming the CFD under the Act. AGREEMENT: In consideration of the foregoing and the material covenants hereinafter contained, the City and the Developer formally covenant, agree and bind themselves as follows: Section 1. Initial Deposit:Additional Advances. The Developer is, concurrently with its execution of this Agreement, delivering to the City $36,000.00 (the "Initial Deposit'), to be used by the City to pay the costs in conducting proceedings for the formation of the CFD under the Act as more fully described in Section 2(a) below (the "Initial Costs"). The Initial Deposit shall be made in the form of a check made payable to the "City of Palm Springs." The City, by its execution hereof, acknowledges receipt by the City of the Initial Deposit. The check representing the Initial Deposit will be cashed by the City. The Developer hereby agrees to advance any additional amounts necessary to pay any Initial Costs incurred by the City in excess of the amount of the Initial Deposit (the "Additional Deposits" and, collectively with the Initial Deposit, the "Deposits"), promptly upon written demand therefore by the Finance Director of the City; provided that the total -1- I � i amount of the Deposits shall not exceed $41,000 without the prior written consent of the Developer. Notwithstanding the foregoing, the City Manager may direct .City staff and consultants to cease all work related to the formation of the CFD until any Additional Deposits so demanded has been received by the City. The Deposits may be commingled with other funds of the City for purposes of investment and safekeeping, but the City shall at all times maintain complete and accurate records showing the expenditures which are made from the Deposits. I Section 2. Use of the Deposits. The Deposits shall be!administered as follows: (a) Payment of Initial Costs. The Finance Director of the City may draw upon the Deposits from time to time to pay the Initial Costs, including but not limited to the following: i (i) the fees and expenses of any consultants to the City employed in connection with the formation of the CFD, including without limitation engineers, legal counsel (including the City Attorney and special counsel), financial advisors,and special tax consultants); (ii) the costs of appraisals, market absorption and feasibility studies and other reports necessary or deemed advisable by City staff or consultants in connection with the formation of the CFD; (iii) costs of publication of notices, recordation of documents, preparation and mailing of ballots and other costs related to any election with respect to the formation of the CFD; i (iv) a reasonable charge for City staff time, as determined by the City Manager in his sole discretion, in analyzing the! CFD, including without limitation a reasonable allocation of City overhead expense related thereto; and (v) any and all other actual costs and expenses incurred by the City with respect to the CFD after the date of execution of this Agreement. (b) Return of Unexpended Deposits Upon Completion !1of CFD Formation. Not later than 10 business days following the effective date of the special tax ordinance for the CFD, the Finance Director of the City shall return the then unexpended Deposits to the Developer, without interest, less an amount equal to any Initial Costs incurred by the City, or that the City is otherwise committed to pay, that have not yet been so paid. (c) Return of Unexpended Deposits Upon Abandonment of CFD Proceedings. If the proceedings to form the CFD are abandoned for any reason pursuant to the mutual agreement of the City and the Developer, the Finance Director of the City shall, within 10 business days after adoption by the City Council of a resolution!stating the intent of the City to terminate proceedings under the Act with respect to the CFD, return any then- unexpended Deposits to the Developer, without interest, less an amount equal to any -2- Initial Costs incurred by the City, or that the City is otherwise committed to pay, that have not yet been so paid. Section 3. Agreement Not Debt or Liability of City or Authority. It is hereby acknowledged and agreed that this Agreement is not a debt or liability of the City, as provided in Section 53314.9(b) of the Act. The City shall in no event be liable hereunder other than to return the unexpended and uncommitted portions of the Deposits as provided in Section 2 and provide an accounting under Section 4. The City shall not be obligated to advance any of its own funds to reimburse the Developer for any amounts under this Agreement, to pay any costs associated with the formation of the CFD, or for any of the Initial Costs. No member of the City Council, and no officer, employee or agent of the City, shall to any extent be personally liable hereunder. Section 4. Accounting. The Finance Director of the City shall provide the Developer with a written accounting of the expenditure of the Deposits within 10 business days of receipt by the Finance Director of the City of a written request therefor submitted by an authorized officer of the Developer. No more than one accounting will be provided in any calendar month and the cost of providing all accountings shall be charged to the Deposits. Section 5. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. Section 6. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. Section 7. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. -3- IN WITNESS THEREOF, the parties hereto have executed this Agreement as of the day and year written alongside their signature line below. Date: June 10, 2019 CITY OF PALM SPRINGS ,Wy David H. Read h.D. City Manager APPROVED AS TO FORM: Jeffr Ballinger City Attorney ATTEST: Ant ny . Me" , MMC Ci erk Date: June 10, 2019 EHOF CANYON VIEW, LLC APPROVED By OITy COUNCIL BY Name Title t -P -4- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of Ca rnia County of sc ) On V l� - �l , �"I before me, �- v , Date Here sert Name and Title of a Officer personally appeared &—av ame(s);'f Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under P L OF PERJURY under the laws of the State California that the foregoing paragraph CARA IVY NEWMAN is true and orre 0, h Notary Public California WITNES hand In official seal. ` = San Francisco County > Commission#2279258 My Comm.Expires Mar 1,2023 Signat e Signature f Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑General ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑Attorney in Fact ❑ Individual ❑Attorney in Fact ❑Trustee ❑ Guardian or Conservator ❑Trustee ❑ Guardian or Conservator ❑Other: ❑ Other: Signer Is Representing: Signer Is Representing: 02014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item #5907 I ` 6 ... - i � � _ ,h .. - 'x I DEPOSIT AGREEMENT This DEPOSIT AGREEMENT (this "Agreement") is entered into on June 10, 2019, between the CITY OF PALM SPRINGS, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (the "City") and EHOF CANYON VIEW, LLC, a Delaware limited liability company (the "Developer"). BACKGROUND : 1. The Developer and the City have entered into a Settlement Agreement and General Release dated January 31, 2019 (the "Settlement Agreement"), relating (among other things) to the funding of future costs of certain off-site public improvements including the undergrounding of utilities, widening of and other improvements to East Palm Canyon Drive (the "Deferred Improvements"). 2. Pursuant to the Settlement Agreement the City has elected to finance the construction of the Deferred Improvements through the establishment of a community facilities improvement district (the "CFD") under the Mello-Roos Community Facilities Act of 1982 (the "Act"). 3. .The Developer is obligated under the Settlement Agreement to pay the costs of forming the CFD and otherwise implement the procedures set forth in the Act relating to the formation of the CFD. 4. The Developer and the City wish to enter into this Agreement for the purpose of specifying the terms relating to the deposit and application of funds by the Developer to pay the costs of forming the CFD under the Act. AGREEMENT: In consideration of the foregoing and the material covenants hereinafter contained, the City and the Developer formally covenant, agree and bind themselves as follows: Section 1. Initial Deposit:Additional Advances. The Developer is, concurrently with its execution of this Agreement, delivering to the City $36,000.00 (the "Initial Deposit"), to be used by the City to pay the costs in conducting proceedings for the formation of the CFD under the Act as more fully described in Section 2(a) below (the "Initial Costs"). The Initial Deposit shall be made in the form of a check made payable to the "City of Palm Springs." The City, by its execution hereof, acknowledges receipt by the City of the Initial Deposit. The check representing the Initial Deposit will be cashed by the City. The Developer hereby agrees to advance any additional amounts necessary to pay any Initial Costs incurred by the City in excess of the amount of the Initial Deposit (the "Additional Deposits" and, collectively with the Initial Deposit, the "Deposits"), promptly upon written demand therefore by the Finance Director of the City; provided that the total -1- i i amount of the Deposits shall not exceed $41,000 without the prior written consent of the Developer. Notwithstanding the foregoing, the City Manager may direct City staff and consultants to cease all work related to the formation of the CFD until any Additional Deposits so demanded has been received by the City. The Deposits may be commingled with other funds of the City for purposes of investment and safekeeping, but the City shall at all times maintain complete and accurate records showing the expenditures which are made from the Deposits. Section 2. Use of the Deposits. The Deposits shall be administered as follows: (a) Payment of Initial Costs. The Finance Director of the City may draw upon the Deposits from time to time to pay the Initial Costs, including but not limited to the following: i (i) the fees and expenses of any consultants to the City employed in connection with the formation of the CFD, including without limitation engineers, legal counsel (including the City Attorney and special counsel), financial advisors, and special tax consultants); (ii) the costs of appraisals, market absorption and feasibility studies and other reports necessary or deemed advisable by City staff or consultants in connection with the formation of the CFD; (iii) costs of publication of notices, recordation of documents, preparation and mailing of ballots and other costs related to any election with respect to the formation of the CFD; I (iv) a reasonable charge for City staff time, as determined by the City Manager in his sole discretion, in analyzing the! CFD, including without limitation a reasonable allocation of City overhead expense related thereto; and I (v) any and all other actual costs and expenses incurred by the City with respect to the CFD after the date of execution of thi I s Agreement. (b) Return of Unexpended Deposits Upon Completion �of CFD Formation. Not later than 10 business days following the effective date of the special tax ordinance for the CFD, the Finance Director of the City shall return the then unexpended Deposits to the Developer, without interest, less an amount equal to any Initial Costs incurred by the City, or that the City is otherwise committed. to pay, that have not yet been so paid. (c) Return of Unexpended Deposits Upon Abandonment of CFD Proceedings. . If the proceedings to form the CFD are abandoned for any reason pursuant to the mutual agreement of the City and the Developer, the Finance Director of the City shall, within 10 business days after adoption by the City Council of a resolution;stating the intent of the City to terminate proceedings under the Act with respect to the CFD, return any then- unexpended Deposits to the Developer, without interest, less an amount equal to any -2- Initial Costs incurred by the City, or that the City is otherwise committed to pay, that have not yet been so paid. Section 3. Agreement Not Debt or Liability of City or Authority. It is hereby acknowledged and agreed that this Agreement is not a debt or liability of the City, as provided in Section 53314.9(b) of the Act. The City shall in no event be liable hereunder other than to return the unexpended and uncommitted portions of the Deposits as provided in Section 2 and provide an accounting under Section 4. The City shall not be obligated to advance any of its own funds to reimburse the Developer for any amounts under this Agreement, to pay any costs associated with the formation of the CFD, or for any of the Initial Costs. No member of the City Council, and no officer, employee or agent of the City, shall to any extent be personally liable hereunder. Section 4. Accounting. The Finance Director of the City shall provide the Developer with a written accounting of the expenditure of the Deposits within 10 business days of receipt by the Finance Director of the City of a written request therefor submitted by an authorized officer of the Developer. No more than one accounting will be provided in any calendar month and the cost of providing all accountings shall be charged to the Deposits. Section 5. Severability. If any part of this Agreement is. held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. Section 6. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. Section 7. Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed an original. -3- i IN WITNESS THEREOF, the parties hereto have executed this Agreement as of the day and year written alongside their signature line below. Date: June 10, 2019 CITY OF PALM SPRINGS f By David H. Rea .D. City Manager APPROVED AS TO FORM: i Jeffrey allinger City Attorney AT T ST: W Anthony J. Rbjia, M city Date: June 10, 2019 EHOF CANYON VIEW, LLC i By APPROVED BY CITY COUNCIL Name Title r -4- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California ) County ofXL On JU-P% _ l a/ before me, _ I41 , Date H e nsert Name and itle of th fficer persoinally appeared 02dk- VWI� Na e(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under P TY OF PERJURY under the laws of the State Califor is that_the foregoing paragraph is true an correct. , .,a CARA IVY NEWMAN \ Notary Public-California WITNE my h d official sea) San Francisco County tt Commission#2279258 My Comm.Expires Marl,2023 Signa ure nature of otary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑General ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑Attorney in Fact ❑ Individual ❑Attorney in Fact ❑Trustee ❑ Guardian or Conservator ❑Trustee ❑ Guardian or Conservator ❑Other: ❑ Other: Signer Is Representing: Signer Is Representing: 02014 National Notary Association •www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item #5907 .y PUBLIC INTEGRITY DISCLOSURE .V N APPLICANT DISCLOSURE FORM cg41FOAN�P 1. Name of Entity EHOF CANYON VIEW, LLC 2. Address of Entity(Principle Place of Business) ONE LETTERMAN DRIVE, BLDG C, SUITE 3800,SAN FRANCISCO, CA 94129 3. v Local or California Address(if different than#2) 4. State where Entity is Registered with Secretary of State DELAWARE If other than California, is the Entity also registered in California?Pq Yes Ll No 5. Type of Entity ❑Corporation kl Limited Liability Company ❑Partnership ❑Trust ❑Other(please specify) 6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: ff any response is not a.natural person, please identify a# officers, directors, members,managers and other fiduciaries for the member, manager, trust or other entity ENCORE HOUSING OPPORTUNITY FUND II GENERAL PARTNER,LLC _--- --.__-. _..- __. , ❑Officer ❑Director ❑Member ®Manager '1 (name] �YYYtUu' 1I�O firlrt.YlDh �Vl1�ri� ��ti,�IGXY► ❑General Partner ❑Limited Partner jhlfiK,Sahn l�NS�t, CI,✓ V�( U Q Z ❑Other _.... . ...,. _ �_.__ ------ ❑Officer ❑Director ❑Member ❑Manager (name] ❑General Partner ❑Limited Partner ❑Other [-]Officer []Director ❑Member ❑Manager (name] ❑General Partner ❑Limited Partner ❑Other_....._...---- -- CITY OF PALM SPRINGS-PUBLIC INTEGRITY DISCLOSURE APPLICANT DISCLOSURE FORM Page 1 of 2 (Revised 09 13 18) ATTACHMENT 1 7. Owners/Investors with a 5%beneficial interest in the Applicant Entity or a related entity EXAM PLE LANE DOE 50%,ABC COMPANY, Inc. [name of owner/investor] [percentage of beneficial interest in entity _ and name of entity] A. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] B. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] hcoye, -bUSl D �IJ&h V)i �aY-►-y�r Lc� [name of owner/investor] (percentage of beneficial interest in entity and name of entity] D. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] E. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT. Signa f Disclosing Party,Printed Name,Title Date 7- CITY OF PALM SPRINGS—PUBLIC INTEGRITY DISCLOSURE FORM APPLICANT DISCLOSURE FORM Page 2 of 2 (Revised 09 13.18) 9 Anthony Mejia From: Sarah Kleinberg <SKleinberg@jacksontidus.law> Sent: Thursday, August 12, 2021 11:17 AM To: Anthony Mejia; Jeff Ballinger; Beverly Grossman Palmer; Wendy Connor Cc: Geri Theile Subject: RE: Palm Springs Oswit EHOF NOTICE: This message originated outside of The City of Palm Springs -- DO NOT CLICK on links or open attachments unless you are sure the content is safe. Thanks Anthony! Sarah Kleinberg Shareholder skleinberg@jacksontidus.law D: 949.851.7623 V Jackson Tidus CORPORATION Click here to share files larger than 25 MB From: Anthony Mejia [mailto:Anthony.Mejia@palmspringsca.gov] Sent: Thursday, August 12, 2021 11:16 AM To: Sarah Kleinberg; Jeff Ballinger; Beverly Grossman Palmer; Wendy Connor Cc: Geri Theile Subject: RE: Palm Springs Oswit EHOF I am ok with swapping the pages. I printed this version and will swap out my hard copy. Anthony J. Mejia, MMC City Clerk From: Sarah Kleinberg <SKleinberg(@iacksontidus.law> Sent: Thursday, August 12, 2021 11:12 AM To: Anthony Mejia <Anthony.Mejia@ palmsprinesca.Pov>; Jeff Ballinger <jeff.ballinger@bbklaw.com>; Beverly Grossman Palmer <bpalmer@strumwooch.com>; Wendy Connor <Wendv.Connor@bbklaw.com> Cc: Geri Theile <GTheile@lacksontidus.law> Subject: RE: Palm Springs Oswit EHOF NOTICE: This message originated outside of The City of Palm Springs -- DO NOT CLICK on links or open attachments unless you are sure the content is safe. Thank you Anthony and Jeff. The City's signature that Anthony sent over appears to be on the prior version of the agreement (before non -substantive changes were made to 1) insert Monday's date on page 1 and 2) insert emails and Jane's contact information in the notices section). Jeff and Anthony, do we have the City's permission to slip page the City's signature into this updated executed version from yesterday that Jeff signed? If so my assistant Geri can help. If you would prefer to re-sign the attached just let us know. Sarah Kleinberg Shareholder sklein berg@iacksontidus. law D: 949.851.7623 Jackson Tidus A _AW CORPORATION Click here to share files larger than 25 MB From: Anthony Mejia [mailto:Anthony.Mejia(c palmspringsca.gov] Sent: Thursday, August 12, 2021 11:03 AM To: Jeff Ballinger; Sarah Kleinberg; Beverly Grossman Palmer; Wendy Connor Subject: RE: Palm Springs Oswit EHOF Here you go. Anthony J. Mejia, MMC City Clerk From: Jeff Ballinger <Jeff.Ballinper@bbklaw.com> Sent: Thursday, August 12, 2021 10:23 AM To:'Sarah Kleinberg' <SKleinbere@iacksontidus. law>; Beverly Grossman Palmer <bpalmer@strumwooch.com>; Wendy Connor <Wendy.Connor@bbklaw.com> Cc: Anthony Mejia <Anthony.Melia@ pa lmspringsca.Pov> Subject: RE: Palm Springs Oswit EHOF NOTICE: This message originated outside of The City of Palm Springs -- DO NOT CLICK on links or open attachments unless you are sure the content is safe. Yes, he has. Anthony, do you want to share our signature page? Jeffrey Ballinger Partner aeff.ballinger@bbklaw.com T: (619) 525-1343 C: (909) 528-9400 www.BBKlaw.com ❑ ❑ From: Sarah Kleinberg <SKleinbere@iacksontidus.law> Sent: Thursday, August 12, 20219:58 AM To: Beverly Grossman Palmer <bpalmer@strumwooch.com>; Wendy Connor <Wendy.Connor@bbklaw.com> Cc: Jeff Ballinger <Jeff.Ballinger@bbklaw.com> Subject: RE: Palm Springs Oswit EHOF Thank you. Jeff will the City Manager/City Clerk be signing today? I'll ask my assistant to prepare a fully compiled executed version for distribution once we have all the signatures. Sarah Kleinberg Shareholder sklei n berg@iacksontidus. law D: 949.851.7623 ►7: Jackson Tidus '!"ii"uctAII ;N Click here to share files larger than 25 MB From: Beverly Grossman Palmer [mailto:bpalmerCabstrumwooch.com] Sent: Thursday, August 12, 2021 9:56 AM To: Wendy Connor Cc: Sarah Kleinberg; Jeff Ballinger Subject: Re: Palm Springs Oswit EHOF All, Jane is traveling by plane today so she will sign when she lands this evening. Best, Beverly Sent from my iPhone On Aug 12, 2021, at 9:36 AM, Wendy Connor <Wendy.Connorgbbklaw.com> wrote: My pleasure to help! From: Sarah Kleinberg <SKleinbere@iacksontidus.law> Sent: Thursday, August 12, 20219:35 AM To: Wendy Connor <Wendv.Connor@bbklaw.com>; Beverly Grossman Palmer <bpalmer@strumwooch.com> Cc: Jeff Ballinger <Jeff.BaIlinger@bbklaw.com> Subject: RE: Palm Springs Oswit EHOF Thank you! Sarah Kleinberg Shareholder skleinberg@iacksontidus.law D: 949.851.7623 <i m age001 Jpg> Click here to share files larger than 25 MB From: Wendy Connor [mailto:Wendy.Connor(dbbklaw.com] Sent: Thursday, August 12, 2021 9:33 AM To: Sarah Kleinberg; Beverly Grossman Palmer Cc: Jeff Ballinger Subject: RE: Palm Springs Oswit EHOF Good morning — Attached is the signed Tolling Agreement Thanks! Wendy Wendy Connor Administrative Coordinator wendv.connor@bbklaw.com T: (619) 525-1346 C: (619) 850-4638 ima e002.' > www.BBKlaw.com ima e003.' > ima e003.' > From: Sarah Kleinberg <SKleinbere@iacksontidus.law> Sent: Wednesday, August 11, 20216:36 PM To: Jeff Ballinger <Jeff.BaIlinger@bbklaw.com>; Beverly Grossman Palmer <bpalmer@strumwooch.com> Cc: Wendy Connor <Wendy.Connor@bbklaw.com> Subject: RE: Palm Springs Oswit EHOF Thanks Jeff! Here you go. This is the one circulated today with Monday's date, Jane's info and our emails. Sarah Kleinberg Shareholder skleinberg@jacksontidus. law D: 949.851.7623 < mage001Jpg> Click here to share files larger than 25 MB From: Jeff Ballinger [mailto:Jeff.Ballinaer(a bbklaw.com] Sent: Wednesday, August 11, 2021 6:33 PM To: Beverly Grossman Palmer; Sarah Kleinberg Cc: Wendy Connor Subject: Re: Palm Springs Oswit EHOF Beverly, Sarah, The City is agreeable to signing on to this tolling agreement. If someone can send me the latest version, I will ask my secretary to insert my electronic signature and send back to you both. leffrev Ballinger Partner ieff.ballinger@bbklaw.com T: (619) 525-1343 C: (909) 528-9400 <ima e002. > www.BBKlaw.com <ima e003.' > ima e003.' > From: Beverly Grossman Palmer <bpalmer@strumwooch.com> Sent: Wednesday, August 11, 2021 12:00 PM To: Sarah Kleinberg Cc: Jeff Ballinger Subject: Re: Palm Springs Oswit EHOF For Oswit, you can use jane@oswitlandtrust.org. Any update from the City, Jeff? Sorry if i missed something, the WiFi is bad where I am! Beverly Sent from my iPhone On Aug 10, 2021, at 11:44 AM, Sarah Kleinberg <SKleinberg@iacksontidus.law> wrote: Happy to add. Will just need Jane or another Oswit members contact info and email. Thx! Sarah Kleinberg Shareholder skleinbera@@iacksontidus. law D: 949.851.7623 <image001.ipg> Click here to share files larger than 25 MB From: Jeff Ballinger [mailto:Jeff.Ballinger(a bbklaw.com) Sent: Tuesday, August 10, 2021 11:19 AM To: 'Beverly Grossman Palmer; Sarah Kleinberg Subject: RE: Palm Springs Oswit EHOF [CAUTION]: External Email. Use caution when opening links or attachments. Hi Sara and Beverly, Thanks for taking the lead on this. The form of the agreement looks fine. Do we want to include our email addresses in the notice section? Or, is that overkill? I'm waiting to hear back from the City Manager, but I expect he will be OK with this as well. I'll let you know as soon as I hear back. <ima e�.jpg> Jeffrey Ballinger Partner ieff.ba IlineerA bbklaw.com T: (619) 525-1343 C: (909) 528-9400 www.BBKlaw.com <ima e0�03.jpg> ima e003. > From: Beverly Grossman Palmer <bpalmergstrumwooch.com> Sent: Tuesday, August 10, 2021 11:09 AM To: Sarah Kleinberg <SKleinber2giacksontidus.law> Cc: Jeff Ballinger <Jeff.Ballin er@bbklaw.com> Subject: Re: Palm Springs Oswit EHOF I will be able to distribute for signature later today after Jeff signs off. Sent from my Whone On Aug 9, 2021, at 10:58 AM, Sarah Kleinberg <SKleinberg_gjacksontidus.law> wrote: Hi there Jeff, Please find attached the proposed Tolling Agreement that Beverly and I coordinated on. Please let us know if you have any questions or comments. If this meets the City's approval we will circulate for signatures. Thank you! Sarah Weinberg <image001Jpg> Shareholder skleinberOiacksontidus.law D: 949.851.7623 0: 949.752.8585 Jackson Tidus F: 949.752.0597 2030 Main Street, 12th Floor www.jacksontidus.law Irvine, CA 92614 Click here to share files larger than 25 MB ****************************************************** ************************************ This message is intended only for the designated recipient(s). It may contain confidential or proprietary information and may be subject to the attorney -client privilege or other confidentiality protections. If you are not a designated recipient, you may not review, copy or distribute this message. If you receive this in error, please notify the sender by reply e-mail and delete this message. ****************************************************** ************************************ TOLLING AGREEMENT This Tolling Agreement ("Agreement") is made and effective this 9th day of August, 2021 ("Effective Date"), by and between the City of Palm Springs, a California charter city and municipal corporation ("City"), Save Oswit Canyon, Inc., d.b.a. Oswit Land Trust, a public benefit corporation ("Oswit"), and EHOF Canyon View, LLC, a Delaware limited liability company ("EHOF") (individually, a "Party" and collectively, the "Parties"). RECITALS A. EHOF is the owner and developer of 80 single-family homes ("Project") on approximately 14 acres of land located at the southwest comer of East Palm Canyon Drive and Matthew Drive ("Property"). B. On July 5, 2017, the City Council adopted a mitigated negative declaration and approved the Project by way of a general plan amendment, preliminary planned development district, vesting tentative tract map and major architectural review (Case No. 5.1384- PD381/VTTM 36969/MAJ 3.3902). On July 22, 2021, the City Council approved the Project's final development plans, finding that the proposed final development plans are in substantial conformance with the previously approved preliminary planned development plans and that, based on the evidence in the record, none of the circumstances identified in California Environmental Quality Act guidelines section 15162 exist. C. On July 28, 2021, a Notice of Determination was posted by the Riverside County Clerk Recorder. Pursuant to Public Resources Code section 21167, the California Environmental Quality Act statute of limitations began to run on that date. D. A dispute has arisen between Oswit, on the one hand, and EHOF and the City, on the other, regarding the City Council's approval of the Project's final development plans (collectively, the "Claims"). E. The Parties may desire to explore the possibility of resolving their differences. In order to allow the Parties time to fully explore the prospects for a mutually agreeable resolution of the Claims, the Parties wish to toll all applicable statutes of limitation. F. By this Agreement, the Parties toll any time limit on the bringing of any lawsuit or claim by Oswit against the City and/or EHOF, and agree that litigation, if any, of such Claims be held in abeyance and without prejudice to the rights of the Parties during the pendency of this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the covenants and conditions contained herein, the Parties agree as follows: 1. The Parties agree that any and all statutes of limitation and statutes of repose applicable to any claims, causes of action, rights, demands, appeals, actions, and proceedings that Oswit may have against the City and/or EHOF, including known, unknown and/or contingent claims, including but not limited to the statutes of limitation at Public Resources Code section 21167, are tolled as of the Effective Date and shall remain tolled until the earlier of September 8, 2021 (the "Expiration Date") or until termination of this Agreement, as provided herein. 2. In exchange for and in consideration of the tolling, Oswit agrees that it will not file a lawsuit against the City and/or EHOF for claims arising out of or associated with the Claims during the term of this Agreement. In the event this Agreement expires or is terminated and Oswit subsequently files an action related to the Claims, the City and EHOF will not assert any defense they may have based on the statutes of limitation and statutes of repose to the extent such defense arises from the passage of time (or action or inaction) during the period this Agreement is in place and the tolling period contemplated herein is in effect. 3. The time period for Oswit to commence litigation for claims arising out of or associated with the Claims against the City and/or EHOF shall recommence upon the earlier of 1) the expiration of this Agreement or 2) the effective date of any termination under paragraph 4 of this Agreement. After the earlier of the expiration or the effective date of any termination, all applicable defenses tolled under this Agreement will no longer be tolled and any applicable statutes of limitation shall begin to run again on that date. 4. Any Party may terminate this Agreement by providing the other Party with written notice of its election to terminate this Agreement. Such written notice shall be effective fifteen (15) calendar days after delivery of the written notice on the other Party. However, unless the Parties mutually agree in writing otherwise, this Agreement shall not extend beyond the Expiration Date, and shall be deemed by the Parties to be expired as of 11:59 p.m. on the Expiration Date. 5. Any document or notices required or permitted under this Agreement shall be in writing. Any notice sent by personal service shall be deemed received on the actual delivery thereof. Any notice sent by registered or certified mail, return receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, then notice shall not be deemed given. If any notice is transmitted by electronic mail (e mail), by attaching to an e-mail a portable document format (.pdf) file containing such notice, by facsimile transmission or similar means, the same shall be deemed served or delivered upon transmission thereof, provided that a copy of such notice is concurrently sent by first-class mail postage prepaid. For purposes of all notices, if notice is received or deemed received on a Saturday, Sunday or legal holiday, or on a business day after 5:00 P.M., it shall be deemed received on the next business day. For purposes of all notices (including a notice of a change of address), the addresses of the Parties are as follows, which may be changed by five (5) days prior written notice: To City: City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attention: Justin Clifton, City Manager 2 CityManager@palmspringsca.gov with a copy to: Best Best & Krieger LLP 655 West Broadway, 15th Floor San Diego, CA 92101 Attention: Jeffrey Ballinger, City Attorney Jeff.Ballinger@bbklaw.com To EHOF: EHOF Canyon View 770 Tamalpais Drive, Suite 4018B Corte Madera, CA 94925 Attention: David Hardy, Hector Calderon David.Hardy@encorefunds.com Hector@encorefimds.com with a copy to: Jackson Tidus 2030 Main Street, Suite 1200 Irvine, CA 92614 Attention: Sarah Kleinberg, Esq. sleinberg@j acksontidus.law To Oswit: Oswit Land Trust 1775 E. Palm Canyon, #4020 Palm Springs, CA 92263 Attention: Jane Garrison jane@oswitlandtrust.org with a copy to: Strumwasser & Woocher LLP 10940 Wilshire Boulevard, Suite 2000 Los Angeles, CA 90024 Attention: Beverly Grossman Palmer, Esq. bpalmer@strumwooch.com 6. The Parties recognize that under limited circumstances certain statutes of limitation enacted for the benefit of the public cannot be waived by agreement. The Parties to this Agreement agree that no such circumstances apply to this matter. 7. By entering this Agreement, the Parties do not admit to any fact or assume any liability of any kind. This Agreement may not be offered as evidence of an admission of such responsibility or liability in any court proceeding. 8. This Agreement shall bind and inure to the benefit of the Parties hereto and their respective governing boards and their individual board members, heirs, executors, administrators, legal representatives, successors, and assigns. 9. If all or any portion of any of the provisions of this Agreement shall be declared invalid, illegal, or unenforceable by laws applicable thereto, then the performance of said offending provision or provisions shall be excused by the Parties hereto and such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement. 10. This Agreement shall be construed as if jointly prepared by all Parties hereto. Any rule of law or legal decision that would require interpretation of any ambiguities in this Agreement against the drafting Party shall not be applicable and is hereby waived. 11. The Parties hereto expressly acknowledge and agree that, with regard to the subject matter of this Agreement and the transactions contemplated herein: (1) there are no oral agreements between the Parties hereto, and (2) this Agreement, including the defined terms (a) embodies the final and complete agreement between the Parties with respect to the issue of tolling statutes of limitation and statutes of repose, (b) supersedes all prior and contemporaneous negotiations, offers, proposals, agreements, commitments, promises, acts, conduct, course of dealing, representations, statements, assurances, and understandings, whether oral or written regarding the issue of tolling statutes of limitation and statutes of repose, and (c) may not be varied or contradicted by evidence of any such prior or contemporaneous matter or by evidence of any subsequent oral agreement of the Parties hereto regarding the same subject matter. 12. This Agreement may be amended upon mutual written agreement of the Parties and execution of an amendment by individuals authorized to sign such amendment, so long as this Agreement has not already been terminated. Any amendment to this Agreement must be made in writing and signed by a duly authorized representative of each eligible Party. 13. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 14. Each of the persons executing this Agreement on behalf of a Party warrants that he or she is duly authorized to execute this Agreement on behalf of that Party, and that by so executing this Agreement the Party in question is formally bound to the provisions of this Agreement. 15. This Agreement may be signed by the Parties in different counterparts and the signature pages combined shall create a single document binding on all parties. This Agreement may be executed and delivered by the exchange of facsimile, .pdf or other electronic image file copies of the executed counterpart signature pages, which shall be considered the equivalent of ink signature pages for all purposes. [Signatures continued on following page] SIGNATURE PAGE TO TOLLING AGREEMENT City of Palm Springs, a California charter city and municipal corporation ` • D. Att t: By: Na . Anthony J. ejia, M C Title: City Clerk Date: D�'IZ2oZ Approved as to Form: By: Name: Jeffrey S. Balli ger Title: City Attorney Date: A Le-% tiZ EHOF Canyon View, LLC, a Delaware limited liability company UIOA Name: Title: Date: 1532331.1 SIGNATURE PAGE TO TOLLING AGREEMENT City of Palm Springs, a California charter city and municipal corporation By: Name: Title: Date: Attest: By: Name: Anthony J. Mej ia, MMC Title: City Clerk Date: Approved as to Form: LE Name: Jeffrey S. Ballinger Title: City Attorney Date: EHOF Canyon View, LLC, a Delaware limited liability company By: 44 Name: Oscar Vasquez Title: C00 & Authorized signatory 8/11/2021 Date: 5 Save Oswit Canyon, Inc., d.b.a Oswit Land Trust, a public benefit co oration By:� Name: V R/1Q G0.t/ilcSC/�J �/�y�LJ�/� Title: i��p 2 S ! .Q ✓ ( 2-X pC V �/` Date: 6 — /2- Z