HomeMy WebLinkAbout05705 - O & M HR, LLC, DDA FOR HARD ROCK 1<0 pF PALM .qye
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Hum MEMORANDUM
TO: John Raymond /
Director of Community & Economic Development
FROM: Kathie Hart, CIVIC
Chief Deputy City Clerk
DATE: August 13, 2008
SUBJECT: O & M HR, LLC — DDA for Hard Rock
A5705
cc: File 4 'Qpe�o/�ito,
Attached is a duplicate original of the DDA for your files and distribution. I have sent the original
to the Recorder's Office. A copy of the recorded DDA will be sent to your office when available.
Please feel free to contact me if there are any questions, ext. 8206.
/kdh
attach.
RECORDING REQUESTED BY:
CITY OF PALM SPRINGS
AND WHEN RECORDED MAIL TO:
City of Palm Springs
P. O. Box 2743
Palm Springs, CA 92263
Attn: Office of the City Clerk
SPACE ABOVE FOR RECORDER ONLY
Filing fee EXEMPT per Government Code 6103
A5705
DISPOSITION AND DEVELOPMENT AGREEMENT
Community Redevelopment Agency
of the City of Palm Springs
and
O & MHR, LLC
Palm Springs Merged Redevelopment Project Area No. 2
Title of Document
THIS AREA FOR
RECORDER'S
USE ONLY
THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
($3.00 Additional Recording Fee Applies)
TABLE OF CONTENTS
I. [§100] SUBJECT OF AGREEMENT.......................................................................-.2
A. [§101] Purpose of This Agreement ........................................................2
B. [§1021 The Redevelopment Plan............................................................2
C. [§103] The Project Area.........................................................................2
D. [§104] The Site.......................................................................................2
E. [§105] Parties to This Aereement...........................................................2
F. [§108] Deposit........................................................................................2
II. [§200] DISPOSITION OF THE SITE.........................................................................2
A. [§201] Sale and Purchase .......................................................................2
B. [§202] Escrow.........................................................................................2
C. [§203] Conveyance of Title and Delivery f Possession .......................2
D. [§204] Conditions Precedent..................................................................2
E. [§205] Form of Deed..............................................................................2
F. [§206] Condition of Title........................................................................2
G. [§207] Time for and Place of Delivery of Deed.....................................2
H. [§2081 Payment of the Purchase Price and Recordation of Deed...........2
I. [§209] Title Insurance ............................................................................2
J. [§210] Taxes and Assessments...............................................................2
K. [§211] Conveyance Free of Possession..................................................2
L. [§212] Inspections; Conditions of the Agency Parcel............................2
M. [§213] Zoning of the Site........................................................................2
N. [§2141 Condition of the Agency Parcel..................................................2
O. [§215] Preliminary Work by the Developer...........................................2
589470.1
P. [§216] Submission of Evidence of Equity Capital and
Financing.....................................................................................2
III. [§300] DEVELOPMENT OF THE SITE....................................................................2
A. [§301] Development of the Site by the Developer.................................2
B. [§313] Responsibilities of the Agency...................................................2
C. [§314] Taxes, Assessments, Encumbrances and Liens ..........................2
D. [§315] Prohibition Against Transfer of Agency Parcel, the
Buildings or Structures Thereon and Assignment of
Agreement...................................................................................2
E. [§316] Security Financing; Rights of Holders........................................2
F. [§322] Right of the Agency to Satisfy Other Liens on the Site
After Title Passes........................................................................2
G. [§323] Certificate of Completion ...........................................................2
H. [§324] Prevailing Wages ........................................................................2
IV. [§400] USE OF THE SITE............................................................................................2
A. [§401] Uses.............................................................................................2
B. [§402] Hotel Operator............................................................................2
C. [§403] Obligation to Refrain From Discrimination................................2
D. [§404] Form of Nondiscrimination and Nonsejuegation Clauses..........2
E. [§405] Effect and Duration of Covenants...............................................2
V. [§500] DEFAULTS, REMEDIES AND TERMINATION.........................................2
A. [§501] Defaults—General ......................................................................2
B. [§502] Legal Actions..............................................................................2
C. [§506] Rights and Remedies are Cumulative.........................................2
589410J
VI. [§600] GENERAL PROVISIONS................................................................................2
A. [§601] Notices. Demands and Communications Between the
Parties..........................................................................................2
B. [§602] Conflicts of Interest.....................................................................2
C. [§603] [Reserved.]..................................................................................2
D. [§604] Enforced Delay: Extension of Times of Performance...............2
E. [§605] Inspection of Books and Records ...............................................2
F. [§606] [Reserved.l..................................................................................2
G. [§607] Attomeys' Fees............................................................................2
VII. [§700] SPECIAL PROVISIONS ..................................................................................2
A. [§701] Amendment of Redevelopment Plan..........................................2
B. [§702] Submission of Documents to the Agency for Approval.............2
C. [§703] Amendments to this Agreement..................................................2
D. [§704] Conflicts......................................................................................2
VIII [§800] ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS...........................2
IX. [§900] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY........................2
Attachments
Attachment No. 1 Map of the Site
Attachment No. 2 Legal Description of the Site
Attachment No. 3 Schedule of Performance
Attachment No. 4 Scope of Development
Attachment No. 5 Form of Grant Deed
539470.1
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS AGREEMENT is entered into as of the day of 2008,
by and between the COMMUNITY REDEVELOPMENT AGENCY OFJC-HE CITY OF
PALM SPRINGS (the "Agency"), and O & M HR, LLC, a Delaware limited liability
company(the "Developer"). The Agency and the Developer agree as follows:
I. [§1001 SUBJECT OF AGREEMENT
A. [§101] Purpose of This Agreement
The purpose of this Agreement is to effectuate the Amended and Restated
Redevelopment Plan approved and adopted on May 26, 2000, by the City Council of the
City of Palm Springs by Ordinance No. 1583 for the Palm Springs Merged
Redevelopment Project Area No. 2 (as amended, the "Redevelopment Plan") and adopted
plans and policies of the City of Palm Springs ("City"), including the restoration and
rehabilitation of private and public properties, elimination of blight, the renewal and
enhancement of a vibrant commercial and tourist core near the City's downtown area, and
ensuring the availability of conference and hotel uses near the Convention Center by
providing for the disposition and development of certain real property (the "Site")
included within the boundaries described in the Redevelopment Plan (the "Project Area")
and the development of a hotel thereon. The development shall include a Hard Rock
hotel which shall include not less than 400 hotel (and/or condominium, if applicable)
rooms, at least 15,000 square feet of "under-roof' meeting space and on-site parking
which meets the requirements of the City(the "Developer Improvements" or "Hotel").
The development of the Hotel pursuant to this Agreement and the
fulfillment generally of this Agreement are in the vital and best interests of the City, and
the health, safety, morals and welfare of its residents and in accord with the public
purposes and provisions of applicable federal, state and local laws and requirements.
B. [§1021 The Redevelopment Plan
This Agreement is subject to the provisions of the Redevelopment Plan.
The Redevelopment Plan, as it now exists and as it may be subsequently amended
pursuant to Section 701, is incorporated herein by reference and made a part hereof as
though fully set forth herein. The Agency is entering into this Agreement to carry out the
provisions of the Redevelopment Plan.
C. [§103] The Project Area
The Project Area is located in the City of Palm Springs, California, and
the exact boundaries thereof are specifically described in the Redevelopment Plan.
589470.1
D. [§104] The Site
The Site is that portion of the Project Area shown on the Map of the Site
(Attachment No. 1) and is more particularly described in the Legal Description of the Site
(Attachment No. 2). The Agency owns an approximately 6 acre portion of the Site
("Agency Parcel"). The Agency Parcel is currently used as a public parking lot. The
Agency shall convey in fee all of the Agency Parcel to the Developer in accordance with
the terms and provisions of this Agreement. The Developer owns an approximately
4 acre portion of the Site adjacent to the south of the Agency Parcel ("Developer Parcel").
The Developer Parcel and the Agency Parcel collectively comprise the Site. The
Developer intends to develop the Hotel on the Site, all as discussed in Section 101 above.
The Agency Parcel and the Developer Parcel are each shown on the Map of the Site
(Attachment No. 1).
E. [§105] Parties to This Agreement
1. [§106] The Agency
The Agency is a public body, corporate and politic, exercising
governmental functions and powers and organized and existing under the Community
Redevelopment Law of the State of California (Health and Safety Code Section 33000
et seq.). The office of the Agency is located at 3200 East Tahquitz Canyon Way, Palm
Springs, CA 92263. "Agency" as used in this Agreement, includes the Redevelopment
Agency of the City of Palm Springs and any assignee of or successor to its rights, powers
and responsibilities.
2. [§107] The Developer
The Developer is O & M HR, LLC, a Delaware limited liability
company. The principal office of the Developer is located at 1 MacArthur Place,
Suite 300, Santa Ana, CA 92707. Wherever the term "Developer" is used herein, such
term shall include any permitted assignee or successor in interest, as herein provided.
The qualifications and identity of the Developer are of particular
concern to the Agency, and it is because of such qualifications and concerns that the
Agency has entered into this Agreement with the Developer. After close of escrow of the
Agency Parcel and prior to the issuance by the Agency of a Certificate of Completion
with respect to the Developer Improvements pursuant to Section 323, with the exception
of Permitted Transferees (as defined in Section 315 below), no voluntary or involuntary
successor in interest of the Developer shall acquire any rights or powers under this
Agreement except as expressly set forth herein. Notwithstanding the foregoing, the
Developer may assign one time only its interest in this Agreement upon prior written
notice to the Agency, but without the Agency's consent, to a single purpose entity owned
and controlled by the Developer.
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589470A
Except as provided in Section 315 below, any proposed buyer,
transferee, conveyee, assignee or lessee shall have the qualifications and financial
responsibility necessary and adequate, as may be reasonably determined by the Agency,
to fulfill the obligations undertaken in this Agreement by the Developer. Except as
provided in Section 315 below, any such proposed buyer, transferee, conveyee, assignee
or lessee, by instrument in writing satisfactory to the Agency and in form recordable
among the land records, for itself and its successors and assigns, and for the benefit of the
Agency, shall expressly assume all of the obligations of the Developer under this
Agreement and agree to be subject to all conditions and restrictions to which the
Developer is subject. There shall be submitted to the Agency for review all instruments
and other legal documents proposed to effect any such sale, transfer, conveyance,
assignment or lease, and, if approved by the Agency, such approval shall be indicated to
the Developer in writing.
In the absence of specific written agreement by the Agency, no
sale, transfer, conveyance, assignment or lease, or the approval thereof by the Agency
prior to the issuance of the Certificate of Completion for the Developer Improvements,
shall be deemed to relieve the Developer or any other party from any obligations under
this Agreement until completion of development of the Developer Improvements as
evidenced by the issuance of a Certificate of Completion therefor.
F. [§108] Deposit
Developer and Agency hereby acknowledge and agree that pursuant to
Section 5 of that certain Exclusive Agreement to Negotiate dated December 8, 2005 (as
the same may have been assigned, amended, supplemented or otherwise modified, the
"ENA"), by and between Developer (as successor-in-interest to Nexus Development
Corporation — Central Division) and the Agency, Developer previously deposited with
Agency an amount equal to FIFTY THOUSAND DOLLARS ($50,000), as an initial
"Good Faith Deposit" (the 'Deposit"). Pursuant to the ENA, as a supplement to the
initial Deposit previously paid by Developer to Agency, it was contemplated that the
Developer would deliver an additional deposit of FIFTY-EIGHT THOUSAND SEVEN
HUNDRED FIFTY DOLLARS ($58,750) (the "Second Deposit") (i.e., for a total deposit
of$108,750, or 3.0% of the Purchase Price).
Upon termination of this Agreement by the Agency as a result of a Default
by the Developer, the Deposit shall be retained by the Agency as liquidated damages as
provided herein.
Upon termination of this Agreement by either party for any other reason,
the Deposit shall be returned to the Developer (which such obligation of the Agency shall
survive the termination of this Agreement).
If this Agreement shall not have been theretofore cancelled or terminated
prior to close of escrow, the Deposit shall be applied to the Purchase Price at the close of
escrow.
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589470A
II. [§200) DISPOSITION OF THE SITE
A. [§201] Sale and Purchase
In accordance with and subject to all the terms, covenants and conditions
of this Agreement, the Agency agrees to sell, and the Developer agrees to purchase the
entire Agency Parcel for the sum of Three Million Six Hundred Twenty Five Thousand
Dollars ($3,625,000) (the "Purchase Price").
The Developer acknowledges and understands that the Agency Parcel will
be conveyed to the Developer for purposes of development pursuant to this Agreement
and not for speculation in undeveloped land.
B. [§202] Escrow
The Agency agrees to open an escrow with an escrow company approved
by the Agency and the Developer, as escrow agent (the "Escrow Agent"), in Palm
Springs, California, within the time established in the Schedule of Performance
(Attachment No. 3) for the purpose of conveying fee title to the Agency Parcel to the
Developer. This Agreement constitutes the joint escrow instructions of the Agency and
the Developer, and a duplicate original of this Agreement shall be delivered to the
Escrow Agent upon the opening of escrow. The Agency and the Developer shall provide
such additional escrow instructions as shall be necessary and consistent with this
Agreement. The Escrow Agent hereby is empowered to act under this Agreement and,
upon indicating its acceptance of the provisions of this Section in writing, delivered to the
Agency and to the Developer within five (5) days after the opening of the escrow, shall
carry out its duties as Escrow Agent hereunder.
The Developer shall deposit with the Escrow Agent an amount equal to
the Purchase Price (less the amount of the Deposit) in accordance with the provisions of
Section 208 of this Agreement.
The Developer shall also pay in escrow to the Escrow Agent the following
fees, charges and costs promptly after the Escrow Agent has notified the Developer of the
amount of such fees, charges and costs, but not earlier than one (1) business day prior to
the scheduled date for the close of escrow:
1. One-half(1/2) of the escrow fee; and
2. The portion of the premium for the title insurance policies
or special endorsements to be paid by the Developer as set
forth in Section 209 of this Agreement.
The Agency shall timely and properly execute, acknowledge and deliver a
deed conveying to the Developer fee title to the Agency Parcel in accordance with the
requirements of Section 203 of this Agreement, together with an estoppel certificate
a
ss9470-1
certifying that the Developer has completed all acts (except deposit of the Purchase Price
(less the amount of the Deposit) necessary to entitle the Developer to such conveyance, if
such be the fact.
The Agency shall pay in escrow to the Escrow Agent the following fees,
charges and costs promptly after the Escrow Agent has notified the Agency of the amount
of such fees, charges and costs, but not earlier than one (1) business day prior to the
scheduled date for the close of escrow:
1. Costs necessary to place the title to the Agency Parcel in
the condition for conveyance required by the provisions of
this Agreement;
2. One-half(1/2) of the escrow fee;
3. Cost of drawing the deed;
4. Recording fees;
5. Notary fees;
6. The premium for an A.L.T.A. standard title insurance
owners policy to be paid by the Agency as set forth in
Section 209 of this Agreement and the cost for a
corresponding A.L.T.A. survey,
7. All taxes and assessments (including special taxes and
supplemental assessments), if any, upon the Agency Parcel
for any time prior to conveyance of title; and
8. Any state, county or city documentary transfer tax.
Upon delivery of the deed to the Escrow Agent by the Agency pursuant to
Section 205 of this Agreement, the Escrow Agent shall record such deed when title can
be vested in the Developer in accordance with the terms and provisions of this
Agreement. The Escrow Agent shall buy, affix and cancel any transfer stamps required
by law and pay any transfer tax required by law.
The Escrow Agent is authorized to:
1. Pay and charge the Agency and the Developer,
respectively, for any fees, charges and costs payable under
this Section. Before such payments are made, the Escrow
Agent shall notify the Agency and the Developer of the
fees, charges and costs necessary to clear title and close the
escrow pursuant to closing statement(s) mutually
acceptable to Agency and Developer;
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589470.1
2. Disburse funds and deliver the deed and other documents to
the parties entitled thereto when the conditions of this
escrow have been fulfilled by the Agency and the
Developer;
3. Record any instruments delivered through this escrow, if
necessary or proper, to vest title in the Developer in
accordance with the terms and provisions of this
Agreement; and
4. Deliver to the Developer the title insurance owners policy
in conformity with Section 209 of this Agreement.
All funds received in this escrow shall be deposited by the Escrow Agent
in an interest-bearing account or accounts with any state or national bank doing business
in the State of California. All disbursements shall be made by check or wire transfer of
the Escrow Agent. All adjustments shall be made on the basis of a thirty (30)day month.
If this escrow is not in condition to close before the Outside Closing Date
(as established in Section 203 of this Agreement), either party then not in breach or
Default of this Agreement may, in writing, terminate this Agreement in the manner set
forth in Section 204 hereof and demand the return of its monies, papers or documents.
Thereupon all obligations and liabilities of the parties under this Agreement shall cease
and terminate in the manner set forth in Section 204 hereof. Unless otherwise agreed to
in writing by the parties, no termination or demand for return shall be recognized until ten
(10) days after the terminating party or the Escrow Agent shall have mailed copies of
such demand to the other party or parties at the address of its or their principal place or
places of business. If any objections are raised within the ten (10) day period, the Escrow
Agent is authorized to hold all monies, papers and documents with respect to the Agency
Parcel until instructed in writing by both the Agency and the Developer or upon
determination thereof by a court of competent jurisdiction. If no such demands are made,
the escrow shall be closed as soon as possible. Nothing in this Section shall be construed
to impair or affect the rights or obligations of the Agency or the Developer to specific
performance.
Any amendment of these escrow instructions shall be in writing and
signed by both the Agency and the Developer. At the time of any amendment, the
Escrow Agent shall agree to carry out its duties as Escrow Agent under such amendment.
All communications from the Escrow Agent to the Agency or the
Developer shall be directed to the addresses and in the manner established in Section 601
of this Agreement for notices, demands and communications between the Agency and the
Developer.
The liability of the Escrow Agent under this Agreement is limited to
performance of the obligations imposed upon it under Section 202 of this Agreement.
6
5844701
Neither the Agency nor the Developer shall be liable for any real estate
commissions or brokerage fees that may arise herefrom. The Agency and the Developer
each represent that neither has engaged any broker, agent or finder in connection with
this transaction.
C. [§203] Conveyance of Title and Delivery of Possession
Provided that the Developer is not in Default under this Agreement and all
conditions precedent to such conveyance have occurred, and subject to any mutually
agreed upon extensions of time, conveyance to the Developer of fee title to the Agency
Parcel shall be completed on or prior to the date specified in the Schedule of Performance
(Attachment No. 3) (the "Outside Closing Date"). The Agency and the Developer agree
to perform all acts necessary for conveyance of title in sufficient time for title to be
conveyed in accordance with the foregoing provisions.
Possession shall be delivered to the Developer concurrently with the
conveyance of title (except that limited access may be permitted before conveyance of
title as permitted in Section 215 of this Agreement). The Developer shall accept title and
possession on or before said date.
D. [§204] Conditions Precedent
1. Agency Conditions
Close of escrow shall be subject to the fulfillment or waiver by the
Agency of each of the conditions precedent described below. Each of the following
conditions are solely for the benefit of the Agency and shall be fulfilled or waived in
writing prior to close of escrow:
a. Developer shall have submitted to Agency evidence
reasonably satisfactory to Agency that developer has
obtained commitments for the equity capital and financing
necessary to finance the Developer Improvements, which
evidence may be provided in the form of a letter or letters
of intent.
b. Developer has provided the confirmation and the abstract
required pursuant to Section 402.
C. Developer shall not be in Default of any of its obligations
under the terms of this Agreement.
d. There shall be no litigation pending with respect to the
Agreement or any City approvals related to the Hotel, the
outcome of which could materially interfere with the
construction of the Developer Improvements.
7
5s9470A
e. Developer has obtained or will obtain all discretionary
permits and land use approvals required for the Hotel,
excepting a final planned development permit and a final
map and ministerial permits such as grading and building
permits.
2. Developer Conditions
Close of escrow is subject to the fulfillment or waiver by the
Developer of each of the conditions precedent described below, which are solely for the
benefit of the Developer and which shall be fulfilled or waived in writing prior to close of
escrow:
a. Developer's approval of the condition of title pursuant to
Section 206, and the Title Company's commitment to issue
the title insurance owners policy in conformity with
Section 209 of this Agreement.
b. The Developer has obtained binding commitments for the
equity capital and financing necessary to acquire the
Agency Parcel and finance the Developer Improvements.
C. Developer has obtained or will obtain all discretionary
permits and land use approvals required for the Hotel,
excepting a final planned development permit and a final
map, and ministerial permits such as grading and building
permits.
d. The Agency shall not be in Default of any of its obligations
contained herein and all representations and warranties of
the Agency contained herein shall be true and correct in all
material respects.
e. If the Developer elects to proceed with marketing and sale
of the Hotel (or portions thereof) as a Condominium Hotel
(as hereinafter defined), the City shall have adopted the
Condominium Hotel Ordinance(as hereinafter defined).
f. Developer shall have provided Agency with written notice
that it has satisfied itself as to the suitability of the soils for
the Developer Improvements.
g. There shall have been no material, adverse new facts or
changes to the financial or physical condition of the Agency
Parcel since the date of this Agreement.
s
M9470.1
3. Termination for Failure of Condition
In the event that, prior to the Outside Closing Date, there is a
failure of one or more conditions described in Section 204 that is not waived by the
benefited party, the party for whose benefit the condition is established may terminate
this Agreement by written notice to the other party and Escrow Agent (subject to the
provisions of Section 202 above). In the event of such a termination, the Agency shall
return the Deposit to the Developer and no party shall have any further rights or liabilities
to the other under this Agreement, other than those obligations which expressly survive
the termination of this Agreement.
4. Liquidated Damages
IN THE EVENT OF A DEFAULT OF THE DEVELOPER
PRIOR TO CLOSE OF ESCROW, THEN, PROVIDED NO DEFAULT ON BEHALF
OF AGENCY HAS OCCURRED, AGENCY SHALL HAVE THE RIGHT, AS ITS
SOLE AND EXCLUSIVE REMEDY, TO TERMINATE THIS AGREEMENT AND
RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES AND AS ITS PROPERTY
WITHOUT ANY DEDUCTION, OFFSET OR RECOUPMENT WHATSOEVER. IF
THE DEVELOPER SHOULD DEFAULT UPON ITS OBLIGATIONS, MAKING IT
NECESSARY FOR THE AGENCY TO TERMINATE THIS AGREEMENT AND TO
PROCURE ANOTHER PARTY OR PARTIES TO REDEVELOP THE SITE IN
SUBSTANTIALLY THE MANNER AND WITHIN THE PERIOD THAT SUCH SITE
WOULD BE REDEVELOPED UNDER THE TERMS OF THIS AGREEMENT, THEN
THE DAMAGES SUFFERED BY THE AGENCY BY REASON THEREOF WOULD
BE UNCERTAIN. SUCH DAMAGES WOULD INVOLVE SUCH VARIABLE
FACTORS AS THE CONSIDERATION THAT SUCH PARTY WOULD PAY FOR
THE SITE; THE EXPENSES OF CONTINUING THE OWNERSHIP AND CONTROL
OF THE SITE; OF INTERESTED PARTIES AND NEGOTIATING WITH SUCH
PARTIES; POSTPONEMENT OF TAX REVENUES THEREFROM THE
COMMUNITY; AND THE FAILURE OF THE AGENCY TO EFFECT ITS
PURPOSES AND OBJECTIVES WITHIN A REASONABLE TIME, RESULTING IN
ADDITIONAL IMMEASURABLE DAMAGE AND LOSS TO THE AGENCY AND
THE COMMUNITY. IT IS IMPRACTICABLE AND EXTREMELY DIFFICULT TO
FIX THE AMOUNT OF SUCH DAMAGES TO THE AGENCY, BUT THE PARTIES
ARE OF THE OPINION, UPON THE BASIS OF ALL INFORMATION AVAILABLE
TO THEM, THAT SUCH DAMAGES WOULD APPROXIMATELY EQUAL THE
AMOUNT OF THE DEPOSIT, AND THE AMOUNT OF SUCH DEPOSIT SHALL BE
RETAINED BY THE AGENCY UPON ANY SUCH OCCURRENCE AS THE TOTAL
OF ALL LIQUIDATED DAMAGES FOR ANY AND ALL SUCH DEFAULTS AND
NOT AS A PENALTY.
9
ssva;o 1
THE DEVELOPER AND THE AGENCY SPECIFICALLY
ACKNOWLEDGE THIS LIQUIDATED DAMAGES PROVISION BY THEIR
SIGNATURES HERE:
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E. [§205] Form of Deed
The Agency shall convey to the Developer fee title to the Agency Parcel
in the condition provided in Section 206 of this Agreement by grant deed in substantially
the form set forth in Attachment No. 5.
F. [§206] Condition of Title
Within the times set forth in the Schedule of Performance
(Attachment No. 3), the Agency shall submit a Preliminary Title Report for the Agency
Parcel to the Developer for approval, together with legible copies of all documents
referenced therein. Developer shall have the right to disapprove of any exceptions to title
by written notice to the Agency delivered within twenty (20) business days from the
Developer's receipt of the Preliminary Title Report and a copy of all documents referred
to therein (the "Title Review Period"). If the Title Company subsequently discloses any
additional exceptions to title which are not shown on the Preliminary Title Report, then
the Developer shall have until the later to occur of(a) ten (10) business days after receipt
of written notice of the existence of such additional exception or (b) the expiration of the
Title Review Period, to review and object to such additional exception by written notice
to the Agency and Escrow Agent. Failure by the Developer to timely provide written
notice of the Developer's disapproval of any exception (or additional exception) to title
shall be deemed Developer's approval of such exception (or additional exception). If the
Developer timely notifies the Agency in writing that the Developer objects to any
exceptions (or additional exception) to title, the Agency shall have ten (10) days
following receipt of the Developer's written notice to (i) cure or eliminate or commit to
the cure or elimination of the objectionable exceptions (or additional exceptions) to title
or (ii) refuse to cure or eliminate the objectionable exceptions (or additional exceptions)
to title, and, in either case, notify the Developer and Escrow Agent of the same. If the
Agency fails to notify the Developer in writing of its election within said ten (10) day
period, then the Agency shall be deemed to have refused to cure or eliminate the
objectionable exceptions (or additional exceptions) to title. If the Agency refuses (or is
deemed to have refused) to cure or eliminate the objectionable exceptions (or additional
exceptions) to title, then the Developer shall have the right to terminate this Agreement
pursuant to Section 204. Notwithstanding the foregoing, the Agency shall remove all
monetary liens and encumbrances other than a lien for taxes not yet due and payable.
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587470A
The Agency shall convey to the Developer fee simple title to the Agency
Parcel free and clear of all recorded liens, encumbrances, assessments, leases, and taxes
except as are consistent with this Agreement and as approved by the Developer pursuant
to this Section.
G. [§2071 Time for and Place of Delivery of Deed
Subject to any mutually agreed upon extensions of time, the Agency shall
deposit the grant deed for the Agency Parcel with the Escrow Agent on or before the date
established for close of escrow in the Schedule of Performance (Attachment No. 3).
H. [§208] Payment of the Purchase Price and Recordation of Deed
The Developer shall deposit the Purchase Price (less the amount of the
Deposit) and other sums required hereunder with the Escrow Agent prior to the close of
escrow, provided that the Escrow Agent shall have notified the Developer in writing that
the grant deed, properly executed and acknowledged by the Agency, has been delivered
to the Escrow Agent and that title is in condition to be conveyed in conformity with the
provisions of Section 206 of this Agreement. Upon the close of escrow, the Escrow
Agent shall file the grant deed for recordation among the land records in the Office of the
County Recorder of Riverside County, shall deliver the corresponding portion of the
Purchase Price and other required sums to the Agency and shall deliver to the Developer
a title insurance policy insuring title in conformity with Section 209 of this Agreement.
I. [§2091 Title Insurance
Concurrently with recordation of the grant deed, First American Title
Insurance Company, or some other title insurance company satisfactory to the Agency
and the Developer having equal or greater financial responsibility ("Title Company"),
shall provide and deliver to the Developer one or more title insurance policies issued by
the Title Company insuring that title is vested in the Developer in the condition required
by Section 206 of this Agreement. The Title Company shall provide the Agency with a
copy of the title insurance policies, and the title insurance policies shall be in an amount
equal to the Purchase Price or such other amount reasonably determined by Developer.
The Agency shall pay only for that portion of the title insurance premium
attributable to an A.L.T.A. standard owners form policy of title insurance in the amount
of the Purchase Price. The Developer shall pay for all other premiums for title insurance
coverage or special endorsements.
Concurrently with close of escrow, the Title Company shall, if requested
by the Developer, provide the Developer with an endorsement to insure the amount of the
Developer's estimated development costs of the improvements to be constructed upon the
Agency Parcel. The Developer shall pay the entire premium for any such increase in
coverage requested by it.
589470A
J. [§210] Taxes and Assessments
All taxes and assessments (including special taxes and supplemental
assessments) on the Agency Parcel, if any, and taxes upon this Agreement or any rights
hereunder, levied, assessed or imposed for any period commencing prior to conveyance
of title shall be borne by the Agency. All such taxes and assessments levied or imposed
for any period commencing after closing of the escrow shall be paid by the Developer.
K. [§211] Conveyance Free of Possession
Except as otherwise provided in the Scope of Development (Attachment
No. 4), the Agency Parcel shall be conveyed free of any possession or right of possession
by any person except that of the Developer and the easements of record approved by
Developer pursuant to Section 206.
L. [§212] Inspections; Conditions of the Agency Parcel
1. Inspections
Developer has conducted a Phase I Environmental Study and Soils
Analysis of the Agency Parcel and is satisfied with its condition.
No further environmental or soils analysis or studies of the Agency
Parcel are required.
2. "As Is"
Developer agrees it will rely solely on its own investigation and
agrees to purchase the Agency Parcel "as is," in its current physical
condition, with no warranties, express or implied, as to the
physical condition thereof or the presence or absence of any latent
or patent condition thereon or therein, including, without
limitation, any Hazardous Materials (as defined herein) thereon or
therein.
3. [Intentionally Omitted]
4. Release and Waiver
The Developer hereby releases and waives all rights, causes of
action and claims Developer has or may have in the future against
the Agency and its officers, beneficiaries, employees, agents,
attorneys, representatives, legal successors and assigns
("Releasees") arising out of or in connection with any Hazardous
Materials (as defined herein), at, on, in, beneath or from the
Agency Parcel, unless the presence of such Hazardous Materials
at, on, in, beneath or from the Agency Parcel is caused in whole or
in part by any of the Releasees. In furtherance of the intentions set
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forth herein, Developer acknowledges that it is familiar with
Section 1542 of the Civil Code of the State of California which
provides as follows:
"A general release does not extend to claims which
the creditor does not know or suspect to exist in his
or her favor at the time of executing the release,
which if known by him or her must have materially
affected his or her settlement with the debtor."
Developer hereby waives and relinquishes any right or benefit
which it has or may have under Section 1542 of the Civil Code of
the State of California or any similar provision of the statutory or
nonstatutory law of any other applicable jurisdiction to the full
extent that it may lawfully waive all such rights and benefits
pertaining to the subject matter of this Section.
5. Definitions
As used in this Agreement, the term "Hazardous Materials" means
any substance, material or waste which is (1) defined as a
"hazardous waste," "hazardous material," "hazardous substance,"
"extremely hazardous waste," "restricted hazardous waste,"
"pollutant" or any other terms comparable to the foregoing terms
under any provision of California law or federal law;
(2) petroleum; (3) asbestos; (4)polychlorinated biphenyls;
(5) radioactive materials; or (6) determined by California, federal
or local governmental authority to be capable of posing a risk of
injury to health, safety or property.
6. Materiality
Developer acknowledges and agrees that the foregoing release and
waiver by Developer for the benefit of the Agency set forth in this
Agreement are a material element of the consideration to the
Agency for the performance of its obligations under this
Agreement, and that the Agency would not have entered into this
Agreement unless Developer's obligations were as provided for
herein. Developer further acknowledges and agrees that the
provisions of this Section which extend representations,
warranties, indemnifications, and/or covenants of Developer to the
benefit of the Agency shall not be satisfied, waived or otherwise
extinguished by Agency's issuance of any Certification of
Completion under Section 323 of this Agreement.
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M. [§213] Zoning of the Site
The Agency and the Developer agree that on October 3, 2007, the City approved
Resolution Nos. 22047 and 22048, pursuant to which the City approved the development
and construction of the Developer Improvements in accordance with the provisions of
this Agreement; provided, however, Agency and the Developer acknowledge that,
concurrently herewith, Developer is seeking the City's approval of certain modifications
to the approved development and construction of the Developer Improvements, which
such modifications the Agency hereby approves of and consents to.
N. [§214] Condition of the Agency Parcel
Except as may be otherwise specifically provided in the Scope of
Development (Attachment No. 4), the Agency Parcel shall be conveyed from the Agency
to the Developer in an "as is" condition. Except as provided in Section 313 below and in
the Scope of Development, the Agency shall not be responsible for any items of site
work.
It shall be the sole responsibility of the Developer, at the Developer's sole
expense, to investigate and determine the soil conditions of the Agency Parcel and the
suitability of such soil conditions for the improvements to be constructed by the
Developer. If the soil conditions are not in all respects entirely suitable for the use or
uses to which the Agency Parcel will be put, then it is the sole responsibility and
obligation of the Developer to take such action as may be necessary to place the soil
conditions in a condition suitable for development or to terminate this Agreement
pursuant to Section 204.
O. [§215] Preliminary Work by the Developer
Prior to the conveyance of title from the Agency, representatives of the
Developer shall have the right of access to the Agency Parcel at all reasonable times for
the purpose of obtaining data and making surveys and tests necessary to carry out this
Agreement. The Developer shall hold the Agency harmless from any injury or damages
arising out of Developer's investigation and preliminary work described in this Section,
except to the extent arising from the gross negligence or willful misconduct of the
Agency. The Developer shall have access to all data and information on the Site
available to the Agency, but without warranty or representation by the Agency as to the
completeness, correctness or validity of such data and information.
Any preliminary work undertaken on the Agency Parcel by the Developer
prior to conveyance of title thereto shall be done only after written consent of the Agency
and at the sole expense of the Developer. The Developer shall save and protect the
Agency against any claims resulting from Developer's preliminary work, access or use
thereof, except to the extent arising from the gross negligence or willful misconduct of
the Agency. Copies of data, surveys and tests obtained or made by the Developer shall
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be filed with the Agency. Any preliminary work by the Developer shall be undertaken
only after securing any necessary permits from the appropriate governmental agencies.
P. [§2161 Submission of Evidence of Equity Capital and Financing
No later than the time specified in the Schedule of Performance
(Attachment No. 3), the Developer shall submit to the Agency evidence satisfactory to
the Agency that the Developer has obtained the equity capital and commitments for
financing necessary to finance the Developer Improvements, which evidence may be
provided in the form of a letter or letters of intent.
III. [§3001 DEVELOPMENT OF THE SITE
A. [§301] Development of the Site by the Developer
1. [§302] Scope of Development
The Site shall be developed as provided in the Scope of
Development (Attachment No. 4).
2. [§303] Preliminary Planned Development
Developer has previously prepared and submitted to the City and
the City approved schematic drawings and an entitlement application (collectively a
"Final Planned Development'). The Site shall be developed as generally established in
the Final Planned Development and related documents except as changes may be
mutually agreed upon between the Developer and the Agency (or as amended by the
City). Any such changes shall be within the limitations of the Scope of Development
(Attachment No. 4).
3. [§304] Constructidn Plans. Drawings and Related Documents
The Developer shall prepare and submit construction plans,
drawings and related documents to the Agency for architectural and site planning review
and written approval as and at the times established in the Schedule of Performance
(Attachment No. 3). The construction plans, drawings and related documents shall be
submitted in two stages: preliminary and final working drawings and plans. Final
working drawings and plans are hereby defined as those in sufficient detail to obtain a
building permit. Agency acknowledges and agrees that notwithstanding anything herein
or on the Schedule of Performance (Attachment No. 3), to the contrary, on or prior to the
date of this Agreement, Developer has provided the preliminary working drawings and
plans to Agency.
The Developer shall also prepare and submit to the Agency for its
approval preliminary and final landscaping and finish grading plans for the Site. Such
final plans shall be prepared and submitted within the times established in the Schedule
of Performance (Attachment No. 3), subject to extensions as are authorized herein or as
15
589d 70.1
mutually agreed to by the parties hereto. Agency acknowledges and agrees that
notwithstanding anything herein or on the Schedule of Performance (Attachment No. 3),
to the contrary, on or prior to the date of this Agreement, Developer has provided the
preliminary landscaping and finish grading plans for the Site to Agency.
During the preparation of all final drawings and plans, Agency
staff and the Developer shall hold regular progress meetings to coordinate the preparation
of, submission to and review of construction plans and related documents by the Agency.
The Agency and the Developer shall communicate and consult informally as frequently
as is necessary to insure that the formal submittal of any documents to the Agency can
receive prompt and speedy consideration.
If any revisions or corrections of plans approved by the Agency
shall be required by any government official, agency, department or bureau having
jurisdiction, or any lending institution involved in financing, the Developer and the
Agency shall cooperate in efforts to obtain a waiver of such requirements or to develop a
mutually acceptable alternative.
For purposes of this Section 304, any matters requiring Agency
approval shall be deemed to have been approved by the Agency to the extent the same are
approved by the City.
1. [§305] Agency Approval of Plans, Drawings and Related
Documents
Subject to the terms of this Agreement, the Agency shall have the
right of architectural and site planning review of all plans and drawings, including any
changes therein.
The Agency shall approve or disapprove the plans, drawings and
related documents referred to in Section 304 of this Agreement within the times
established in the Schedule of Performance (Attachment No. 3). Once an aspect of the
plans, drawings and related documents has been approved by the Agency, a later
rendering of such aspect, or a more detailed iteration of such aspect, shall be deemed
approved by the Agency absent a material change thereto. Failure by the Agency to
either approve or disapprove within the times established in the Schedule of Performance
shall be deemed an approval. Any disapproval shall state in writing with reasonable
specificity the reasons for disapproval and the changes that the Agency requests be made.
Such reasons and such changes must be consistent with the Scope of Development
(Attachment No. 4) and any items previously approved or deemed approved hereunder by
the Agency. The Developer, upon receipt of a disapproval based upon powers reserved
by the Agency hereunder, shall revise such plans, drawings and related documents and
resubmit them to the Agency as soon as possible after receipt of the notice of disapproval,
provided that in no case shall the Agency be entitled to require changes inconsistent with
the Scope of Development and any previously approved items.
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If the Developer desires to make any substantial change in the
construction plans after their approval by the Agency, the Developer shall submit the
proposed change to the Agency for its approval. If the construction plans, as modified by
the proposed change, conform to the requirements of Section 304 of this Agreement, the
approvals previously granted by the Agency under this Section and the Scope of
Development (Attachment No. 4), the Agency shall approve the proposed change and
notify the Developer in writing within thirty (30) days after submission to the Agency.
Such change in the construction plans shall, in any event, be deemed approved by the
Agency unless rejected, in whole or in part, by written notice thereof by the Agency to
the Developer setting forth in detail the reasons therefor, and such rejection shall be made
within said thirty(30) day period.
For purposes of this Section 305, any matters requiring Agency
approval shall be deemed to have been approved by the Agency to the extent the same are
approved by the City.
5. [§306] Cost of Construction
The cost of developing the Site and constructing all Developer
Improvements thereon shall be bome by the Developer, except for work expressly set
forth in this Agreement to be performed or paid for by the Agency or others (including,
without limitation, as set forth in Section 313 below). The Agency and the Developer
shall each pay the costs necessary to administer and carry out their respective
responsibilities and obligations under this Agreement.
6. [§307] Construction Schedule
After close of escrow, the Developer shall promptly begin and
thereafter diligently prosecute to completion the construction of the Developer
Improvements and the development of the Site within the times specified in the Schedule
of Performance (Attachment No. 3) or such reasonable extension of said dates as may be
granted by the Agency or as provided in Section 604 of this Agreement. The Schedule of
Performance is subject to revision from time to time as mutually agreed upon in writing
between the Developer and the Agency.
During the period of construction, but not more frequently than
once a month, the Developer shall submit to the Agency a written progress report of the
construction when and as requested by the Agency. The report shall be in such form and
detail as may reasonably be required by the Agency and shall include a reasonable
number of construction photographs taken since the last report submitted by the
Developer.
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589470.1
7. [§3081 Bodily Injury, Property Damage and Workers'
Compensation Insurance
Prior to the commencement of construction on the Site or any
portion thereof, the Developer shall furnish or cause to be furnished to the Agency
duplicate originals or appropriate certificates of bodily injury and property damage
insurance policies in the amount of at least ONE MILLION DOLLARS ($1,000,000) for
any person, FIVE MILLION DOLLARS ($5,000,000) for any occurrence and
FIVE HUNDRED THOUSAND DOLLARS ($500,000) property damage, naming the
Agency as an additional or coinsured. The Developer shall also furnish or cause to be
furnished to the Agency evidence satisfactory to the Agency that any contractor with
whom it has contracted for the performance of work on the Site carries workers'
compensation insurance as required by law. The obligations set forth in this Section shall
remain in effect only until a final Certificate of Completion has been issued with respect
to the Developer Improvements as hereinafter provided in Section 323.
8. [§309] City and Other Governmental Agency Permits
Before commencement of construction or development of any
buildings, structures or other work of improvement upon the Site (unless such
construction, development or work is to be commenced before the conveyance of title),
the Developer shall, at its own expense, secure or cause to be secured any and all permits
that may be required by the City or any other governmental agency affected by such
construction, development or work.
9. [§3101 Rights of Access
For the purposes of assuring compliance with this Agreement,
representatives of the Agency and the City shall have the reasonable right of access to the
Site without charges or fees and at normal construction hours during the period of
construction for the purposes of this Agreement, including, but not limited to, the
inspection of the work being performed in constructing the Developer Improvements.
Such representatives of the Agency or the City shall be those who are so identified in
writing by the Executive Director of the Agency. The Agency and the City shall
indemnify and defend the Developer and hold it harmless from any damage caused or
liability arising out of this right to access, which such obligation shall survive the
expiration or earlier termination of this Agreement.
10. [§311] Local, State and Federal Laws
The Developer shall carry out the construction of the Developer
Improvements in conformity with all applicable laws, including all applicable federal and
state labor standards.
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11. [§312] Antidiscrimination During Construction
The Developer, for itself and its successors and assigns, agrees that
in the construction of the Developer Improvements provided for in this Agreement, the
Developer will not discriminate against any employee or applicant for employment
because of race, color, creed, religion, sex, marital status, ancestry or national origin.
B. [§313] Responsibilities of the Agency
The Agency, without expense to the Developer or assessment or claim
against the Site, shall cause to be performed all work specified herein and in the Scope of
Development (Attachment No. 4) for the Agency to perform within the times specified in
the Schedule of Performance (Attachment No. 3).
In addition, the Agency shall reimburse the Developer for all Costs (as
defined below) incurred by the Developer in connection with completing the "Public
Improvement Work" set forth in the Scope of Development (Attachment No. 4),
completion of which has been imposed on the Developer as a condition of approval in
connection with the entitlements for the Developer Improvements; provided, however,
the Agency shall not be required to reimburse the Developer for any Costs in excess of
$3,000,000, and any Costs incurred by the Developer in connection with such Public
Improvement Work in excess of$3,000,000 shall be borne by the Developer.
In connection with the foregoing, from time to time during completion of
the Public Improvement Work, the Developer may submit to the Agency a written
request for reimbursement of Costs incurred by the Developer with respect to such Public
Improvement Work completed as of the date of submission (each, a "Reimbursement
Request'). Each Reimbursement Request shall include a copy of supporting bills and
invoices and a certification from the general contractor that the amount set forth in the
Reimbursement Request has been paid or is due and owing. The Agency shall reimburse
the Developer for the Costs set forth in the Reimbursement Request within thirty (30)
days following submission of a Reimbursement Request. The presentation of the
Reimbursement Request shall constitute a representation on the part of the Developer that
the funds referred to therein have been used solely for paying only the permitted Costs
incurred by the Developer in connection with completing the Public Improvement Work.
For purposes of this Agreement, "Costs" shall mean, collectively, the
actual hard and soft costs and expenses incurred in connection with completing the Public
Improvement Work, including, without limitation, (a) the costs for design and
construction of the Public Improvement Work, including all labor, materials, equipment
costs, project staff and general conditions, and payment, performance and/or maintenance
bonds, (b) the costs for preparing and revising any conceptual drawings, plans and
specifications, and change orders, for preparing and recording any applicable conveyance
documents, and for any and all studies, inspections, reports and tests as might be
reasonably necessary or required, including by the Agency, the City or any other
governmental authority, (c) all fees paid to the Agency, the City or any other
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5$9470.f
governmental authority in connection with the Public Improvement Work, including for
the issuance of permits, approvals, or licenses, (d) any costs associated with the
investigation or remediation of any hazardous materials, (e) professional fees and legal
costs associated with the design and construction of the Public Improvement Work, and
(0 a general contractor's fee not to exceed five percent (5%) of the total Costs for the
Public Improvement Work (excluding the portion of the Costs attributable to clause (e)
above and this clause (t)) payable to Nexus Construction Services, Inc. (an affiliate of the
Developer and the general contractor to be engaged by the Developer in connection with
the Hotel).
C. [§314] Taxes, Assessments, Encumbrances and Liens
The Developer shall pay when due all real estate taxes and assessments
assessed and levied on the Site for any period subsequent to conveyance of title to
Developer. Prior to the issuance of a Certificate of Completion for the Developer
Improvements, the Developer shall not place or allow to be placed on the Site any
mortgage, trust deed, or financial encumbrance or lien unauthorized by this Agreement.
The Developer shall remove or have removed any levy or attachment made on the Site
(or any portion thereof), or shall assure the satisfaction thereof, within a reasonable time,
but in any event prior to a sale thereunder. Nothing herein contained shall be deemed to
prohibit the Developer from contesting the validity or amounts of any tax, assessment,
encumbrance or lien, nor to limit the remedies available to the Developer in respect
thereto.
D. [§315] Prohibition Against Transfer of Agency Parcel, the Buildings or
Structures Thereon and Assignment of Agreement
The qualifications and identity of the Developer are of particular concern
to the Agency, and it is because of such qualifications and concerns that the Agency has
entered into this Agreement with the Developer. Accordingly, after close of escrow of
the Agency Parcel and prior to the issuance by the Agency of a Certificate of Completion
with respect to the Developer Improvements pursuant to Section 323, with the exception
of Permitted Transferees (as defined below), the Developer shall not, except as expressly
permitted by this Agreement, sell, transfer, convey, assign or lease the whole or any part
of the buildings or Developer Improvements thereon without the prior written approval of
the Agency, not to be unreasonably withheld, conditioned or delayed. This prohibition
shall not apply subsequent to the issuance of the Certificate of Completion for the
Developer Improvements. Any proposed assignee or successor-in-interest shall have the
qualifications and financial responsibility necessary and adequate, as may be reasonably
determined by the Agency, to fulfill the obligations undertaken in this Agreement by the
Developer. Any such proposed assignee or successor-in-interest, by instrument in
writing satisfactory to the Agency and in form recordable among the land records, for
itself and its successors and assigns, and for the benefit of the Agency, shall expressly
assume all of the obligations of the Developer under this Agreement and agree to be
subject to all conditions and restrictions to which the Developer is subject. There shall be
submitted to the Agency for review all instruments and other legal documents proposed
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to effect any such assignment, and, if approved by the Agency, such approval shall be
indicated to the Developer in writing. This prohibition shall not be deemed to prevent the
granting of easements or permits to facilitate the development of the Agency Parcel.
Notwithstanding anything to the contrary contained herein, the Developer may sell,
transfer, convey, assign or lease the whole or any part of the buildings or Developer
Improvements thereon without the prior written approval of the Agency to any of the
following "Permitted Transferees":
a. An entity affiliated with the Developer;
b. A buyer of a condominium unit;
C. A grantee, licensee or permittee pursuant to a conveyance
or dedication of any portion of the Site to the City or other
governmental entity or the granting of easements, licenses
or permits to facilitate construction of the Developer
Improvements;
d. A third-party institutional lender who has provided
financing in connection with the Hotel, and who, upon
foreclosure, trustee's sale or deed in-lieu of foreclosure,
either (i) acquires fee simple title to the Site or any portion
thereof (e.g., financing secured by a deed of trust
encumbering the real property comprising the Site or any
portion thereof), (ii) acquires, directly or indirectly, the
equity interests in the Developer (e.g., mezzanine loan
secured by the equity interests in the Developer) and/or
(iii) takes assignment of this Agreement by foreclosure,
deed in lieu of foreclosure; and/or
e. The Manager.
In the absence of specific written agreement by the Agency, no such
transfer, assignment or approval by the Agency prior to the issuance of the Certificate of
Completion for the Developer Improvements shall be deemed to relieve the Developer or
any other party from any obligations under this Agreement until completion of
development of the Developer Improvements as evidenced by the issuance of a
Certificate of Completion therefor.
E. [§316] Security Financing; Rights of Holders
1. [§317] No Encumbrances Except Mortgages, Deeds of Trust. Sales
and Lease-Backs or Other Financing for Hotel
Notwithstanding Sections 314 and 315 of this Agreement,
mortgages, deeds of trust, mezzanine indebtedness, sales and lease-backs, grant of
21
5g9490.1
security interests or any other form of conveyance required for any reasonable method of
financing are permitted before issuance of a Certificate of Completion for the Developer
Improvements, without the Agency's consent, but only for the purpose of securing loans
of funds to be used for financing the acquisition or development of the Site, the
construction of improvements on the Developer Improvements, and any other
expenditures necessary and appropriate to develop the Site under this Agreement. The
Developer shall notify the Agency in advance of any mortgage, deed of trust, mezzanine
indebtedness, sale and lease-back, grant of security interest or other form of conveyance
for financing if the Developer proposes to enter into the same before issuance of a
Certificate of Completion for the Developer Improvements. Unless such lender is a third-
party institutional lender, the Developer shall not enter into any such conveyance for
financing without the prior written approval of the Agency, which approval the Agency
agrees to give if any such conveyance is given to a responsible financial or lending
institution or other acceptable person or entity. Such lender shall be deemed approved
unless rejected in writing by the Agency within ten (10) days after notice thereof to the
Agency by the Developer. In any event, the Developer shall promptly notify the Agency
of any mortgage, deed of trust, mezzanine indebtedness, lease-back, grant of security
interest or other financing conveyance, encumbrance or lien that has been created or
attached thereto prior to completion of the construction of the Developer Improvements
on the Site whether by voluntary act of the Developer or otherwise. The words
"mortgage" and "deed of trust," as used herein, include all other appropriate modes of
financing real estate acquisition, construction and land development.
2. [§318] Holder Not Obligated to Construct Improvements
The holder of any mortgage, deed of trust or other security interest
authorized by this Agreement shall in no way be obligated by the provisions of this
Agreement to construct or complete the Developer Improvements or to guarantee such
construction or completion, nor shall any covenant or any other provision in the grant
deed for the Agency Parcel be construed so to obligate such holder. Nothing in this
Agreement shall be deemed to construe, permit or authorize any such holder to devote the
Site to any uses or to construct any improvements thereon other than those uses or
improvements provided for or authorized by this Agreement.
3. [§319] Notice of Default to Mortgage, Deed of Trust or Other
Security Interest Holders; Right to Cure
Whenever the Agency shall deliver any notice or demand to the
Developer with respect to any breach or Default by the Developer in completion of
construction of the Developer Improvements, the Agency shall at the same time deliver a
copy of such notice or demand to each holder of record of any mortgage, deed of trust or
other security interest authorized by this Agreement who has previously made a written
request to the Agency therefor. Each such holder shall (insofar as the rights of the
Agency are concerned) have the right, at its option, within ninety (90) days after the
receipt of the notice, to cure or remedy or commence to cure or remedy any such Default;
provided that if such cure or remedy requires possession, then such holder shall have
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such additional time as may be reasonably necessary to secure possession. In the event
there is more than one such holder, the right to cure or remedy a breach or Default of the
Developer under this Section shall be exercised by the holder first in priority or as the
holders may otherwise agree among themselves, but there shall be only one exercise of
such right to cure and remedy a breach or Default of the Developer under this Section.
Nothing contained in this Agreement shall be deemed to require, permit or authorize such
holder to undertake or continue the construction or completion of the Developer
Improvements (beyond the extent necessary to conserve or protect the Developer
Improvements or construction already made) without first having expressly assumed the
Developer's obligations to the Agency by written agreement satisfactory to the Agency.
The holder in that event must agree to complete, in the manner provided in this
Agreement, the Developer Improvements to which the lien or title of such holder relates.
Any such holder properly completing such improvements shall be entitled, upon written
request made to the Agency, to a Certificate of Completion from the Agency.
4. [§320] Failure of Holder to Complete Improvements
In any case where, six (6) months after Default by the Developer in
completion of construction of the Developer Improvements under this Agreement, the
holder of any mortgage, deed of trust or other security interest creating a lien or
encumbrance upon the Site or any portion thereof has not exercised the option to
construct, or if it has exercised the option and has not proceeded diligently with
construction, the Agency may purchase the mortgage, deed of trust or other security
interest by payment to the holder of the amount of the unpaid debt, plus any accrued and
unpaid interest and all other amounts due under the loan secured thereby including,
without limitation, any prepayment obligation. If ownership has vested in the holder, the
Agency, if it so desires, shall be entitled to a conveyance from the holder to the Agency
upon payment to the holder of an amount equal to the sum of the following:
a. The unpaid mortgage, deed of trust or other security
interest debt at the time title became vested in the holder
and all other amounts due under the loan (less amounts
resulting from collection and application of rentals and
other income received during foreclosure proceedings);
b. All expenses with respect to foreclosure;
C. The net expenses, if any (exclusive of general overhead),
incurred by the holder as a direct result of the subsequent
management of the Site or portions thereof;
d. The costs of any authorized improvements made by such
holder; and
e. An amount equivalent to the interest that would have
accrued on the aggregate of such amounts had all such
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589470.1
amounts become part of the mortgage or deed of trust debt
and such debt had continued in existence to the date of
payment by the Agency.
5. [§321] Right of Agency to Cure Mortgage, Deed of Trust or Other
Security Interest Default
In the event of a default or breach by the Developer of a mortgage,
deed of trust or other security interest with respect to the Site or any portion thereof prior
to the completion of the Developer Improvements, and the holder has not exercised its
option to complete the Developer Improvements, the Agency may cure the default prior
to completion of any foreclosure. In such event, the Agency shall be entitled to
reimbursement from the Developer of all costs and expenses reasonably incurred by the
Agency in curing the default. The Agency shall also be entitled to a lien upon the Site or
applicable portion thereof to the extent of such costs and disbursements. Any such lien
shall be subject to mortgages, deeds of trust or other security interests executed for the
sole purpose of obtaining funds to purchase and develop the Site as authorized herein.
F. [§322] Right of the Agency to Satisfy Other Liens on the Site After Title
Passes
After the close of escrow and prior to the issuance of a Certificate of
Completion for construction and development on the Developer Improvements, and after
the Developer has had a reasonable time to challenge, cure or satisfy any liens or
encumbrances on the Site, upon written notice to the Developer and a failure by the
Developer to cure the same within fifteen (15) days following such notice, the Agency
shall have the right to satisfy any such liens or encumbrances, provided, however, that
nothing in this Agreement shall require the Developer to pay or make provision for the
payment of any tax, assessment, lien or charge so long as the Developer in good faith
shall contest the validity or amount thereof, and so long as such delay in payment shall
not subject the Site to forfeiture or sale.
G. [§323] Certificate of Com lep tion
Promptly after completion and satisfactory inspection by the Agency of
the Developer Improvements, the Agency shall furnish the Developer with a Certificate
of Completion. Such Certificate of Completion shall be in such form as to permit it to be
recorded in the Office of the County Recorder of Riverside County.
A Certificate of Completion shall be, and shall so state, conclusive
determination of satisfactory completion of the construction of the Developer
Improvements required by this Agreement and of full compliance with the terms hereof.
After issuance of such Certificate of Completion, any party then owning or thereafter
purchasing, leasing or otherwise acquiring any interest in the Site shall not (because of
such ownership, purchase, lease or acquisition) incur any obligation or liability under this
Agreement, except that such party shall be bound by any covenants contained in the grant
24
589470A
deed, in accordance with the provisions of Sections 401-405 of this Agreement. Except
as otherwise provided herein, after the issuance of a Certificate of Completion for the
Developer Improvements, neither the Agency nor any other person shall have any rights,
remedies or controls with respect to the Site or the Developer Improvements that it would
otherwise have or be entitled to exercise under this Agreement as a result of a Default in
or breach of any provision of this Agreement, and the respective rights and obligations of
the parties shall be as set forth in the grant deed.
The Agency shall not unreasonably withhold a Certificate of Completion.
If the Agency refuses or fails to furnish a Certificate of Completion for the Developer
Improvements after written request from the Developer, the Agency shall, within ten (10)
days after receipt of such written request, provide the Developer with a written statement
of the reasons the Agency refused or failed to furnish a Certificate of Completion. The
statement shall also contain the Agency's opinion of the action the Developer must take
to obtain a Certificate of Completion. If the reason for such refusal is confined to the
immediate unavailability of specific items or materials for landscaping, the Agency will
issue its Certificate of Completion upon the posting of a bond by the Developer with the
Agency in an amount representing a fair value of the work not yet completed. If the
Agency shall have failed to provide such written statement within said ten (10) day
period, the Developer shall be deemed entitled to the Certificate of Completion.
Such Certificate of Completion shall not constitute evidence of
compliance with or satisfaction of any obligation of the Developer to any holder of a
mortgage or any insurer of a mortgage securing money loaned to finance the
improvements or any part thereof. Such Certificate of Completion is not notice of
completion as referred to in California Civil Code Section 3093 or a Certificate of
Occupancy.
H. [§324] Prevailing Wages
When improvements which are considered to be public works under State
law are constructed, the Developer is required to (i) pay and to cause its contractor and
subcontractors to pay, prevailing wages for the construction of the improvements as those
wages are determined pursuant to Labor Code Sections 1720 et seq. and (ii) implement
regulations of the Department of Industrial Relations and (iii) comply with the other
applicable provisions of Labor Code Sections 1720 et seq. Except with respect to the
Public Improvement Work set forth in the Scope of Development (Attachment No. 4)
(and referenced in Section 313 above), neither Agency nor Developer believe that the
project to be developed on the Site is a public work for purposes of State law. Agency
and Developer do believe, however, that the Public Improvement Work component of the
project to be developed on the Site constitutes a public work for purposes of State law,
pursuant to Labor Code Section 1720(c)(2). In connection with the foregoing, the
Developer hereby represents, warrants and covenants to the Agency that Developer will
abide by the applicable prevailing wage provisions of Labor Code Sections 1720 et seq.
Without limiting the foregoing, the Developer shall indemnify, hold harmless and defend
(with counsel reasonably acceptable to the Agency) the Agency against any claim for
25
589470.1
damages, compensation, fines, penalties or other amounts arising out of the failure or
alleged failure of any person or entity (including Developer, its contractors and
subcontractors) to pay prevailing wages as required by law or to comply with the other
applicable provisions of Labor Code Sections 1720 et seq. or to implement regulations of
the Department of Industrial Relations in connection with construction of the Public
Improvement Work.
IV. [§4001 USE OF THE SITE
A. [§401] Uses
The Developer covenants and agrees for itself, its successors, its assigns
and every successor in interest that the Developer and its successors and assignees shall
use the Site and the improvements thereon only for a Hard Rock hotel and meeting space
with parking and related uses, including no less than 400 hotel (and condominium, if
applicable) rooms and 15,000 square feet of"under-roof' meeting space or similar quality
hotel resort property; provided, however, the Developer shall have the right, subject to
the adoption by the City of an ordinance permitting the sale of individual hotel rooms as
condominium units (the "Condominium Hotel Ordinance"), to market and sell the Hotel
(or portions thereof) as a condominium hotel project ("Condominium Hotel").
The Developer shall use the Site and the improvements thereon for no
purpose other than hotel and condominium related uses without the prior written consent
of the Agency. The foregoing covenant shall run with the land.
B. [§4021 Hotel Manager
The Developer and the Agency hereby acknowledge and agree that the
Developer (as successor-by-assignment to O&M Indian Canyon, LLC) has engaged Hard
Rock Hotel Licensing, Inc., a Florida corporation, as the "Manager," to manage and
promote the business, services, marketing and sales of the Hotel pursuant to that certain
Management Agreement Relating to the Palm Springs Hard Rock Hotel dated as of
November 27, 2006 (the "Hotel Management Agreement"). Agency hereby approves of
the Hotel Management Agreement and the Developer's engagement of Hard Rock Hotel
Licensing, Inc. as the "Manager" of the Hotel. To the extent the Developer hereafter
engages a new Manager which is not affiliated with Hard Rock Hotel Licensing, Inc.,
such new Manager shall be satisfactory to the Agency, in its reasonable discretion and
shall have a reputation, experience and qualifications for managing a Hard Rock hotel or
similar hotel in size and quality. Prior to conveyance of the Agency Parcel to the
Developer, the Developer shall provide to the Agency written confirmation that the Hotel
Management Agreement is still in full force and effect (or that the Developer has entered
into a new Hotel Management Agreement with a new Manager, if applicable), together
with an abstract of the Hotel Management Agreement (or such new Hotel Management
Agreement, if applicable) which identifies the material terms and provisions contained
therein.
26
589470.1
Any change in the identity of the Manager from that of Hard Rock Hotel
Licensing, Inc. prior to issuance of a Certificate of Completion (other than to an affiliate
of Hard Rock Hotel Licensing, Inc.) shall require the prior written approval of the
Agency to the extent such new Manager is not a publicly traded company or entity, which
approval shall not be unreasonably withheld or delayed if the new Manager meets the
qualifications set forth in this Agreement. As used herein 'change in the identity of
Manager " shall mean any change in fifty percent (50%) or more of the ownership or
control of the Manager or in a general partner, managing partner or other entity having
the controlling interest in Operator.
C. [§403] Obligation to Refrain From Discrimination
The Developer covenants by and for itself and any successors in interest
that there shall be no discrimination against or segregation of any person or group of
persons on any basis listed in subdivision (a) or (d) of Section 12955 of the Government
Code, as those bases are defined in Section 12926, 12926.1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the
Government Code in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Site, nor shall the Developer itself or any person claiming under or
through it establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of
tenants, lessees, subtenants, sublessees or vendees of the Site. The foregoing covenants
shall run with the land.
D. [§404] Form of Nondiscrimination and Nonseige¢ation Clauses
The Developer shall refrain from restricting the rental, sale or lease of the
Site on any basis listed in subdivision (a) or (d) of Section 12955 of the Government
Code, as those bases are defined in Section 12926, 12926.1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the
Government Code. All such deeds, leases or contracts shall contain or be subject to
substantially the following nondiscrimination or nonsegregation clauses:
1. In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and
all persons claiming under or through them, that there shall be no
discrimination against or segregation of any person or group of
persons on any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in
Section 12926, 12926.1, subdivision (m) and paragraph (1) of
subdivision (p) of Section 12955, and Section 12955.2 of the
Government Code in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the premises herein conveyed,
nor shall the grantee, or any person claiming under or through him
or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
27
589470A
location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees in the premises herein conveyed. The
foregoing covenants shall run with the land."
2. In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and
all persons claiming under or through him or her, and this lease is
made and accepted upon and subject to the following conditions:
That there shall be no discrimination against or segregation of any
person or group of persons on any basis listed in subdivision (a) or
(d) of Section 12955 of the Government Code, as those bases are
defined in Section 12926, 12926,1, subdivision (m) and paragraph
(1) of subdivision (p) of Section 12955, and Section 12955.2 of
the Government Code, in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the premises herein leased, nor
shall the lessee himself or herself, or any person claiming under or
through him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the premises herein leased."
3. In contracts: "There shall be no discrimination against or
segregation of any person or group of persons on any basis listed
in subdivision (a) or (d) of Section 12955 of the Government
Code, as those bases are defined in Section 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of
Section 12955, and Section 12955.2 of the Government Code in
the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the premises, nor shall the transferee himself or
herself, or any person claiming under or through him or her,
establish or permit any such practice or practices of discrimination
or segregation with reference to the selection, location, number,
use or occupancy of tenants, lessees, subtenants, sublessees or
vendees of the premises."
E. [§405] Effect and Duration of Covenants
Except as otherwise provided, the covenants contained in Section 401 of
this Agreement and the grant deed shall remain in effect until the termination date of the
Redevelopment Plan, and the covenants contained in Section 402 of this Agreement shall
remain in effect until the Hotel opens for business. The covenants against discrimination
shall remain in effect in perpetuity. The covenants established in this Agreement and the
grant deed shall, without regard to technical classification and designation, be binding for
the benefit and in favor of the Agency, its successors and assigns, the Agency and any
successor in interest to the Site or any part thereof.
28
5s9470A
The Agency is deemed the beneficiary of the terms and provisions of this
Agreement and of the covenants running with the land for and in its own rights and for
the purposes of protecting the interests of the community and other parties, public or
private, in whose favor and for whose benefit this Agreement and the covenants running
with the land have been provided. This Agreement and the covenants shall run in favor
of the Agency without regard to whether the Agency has been, remains or is an owner of
any land or interest therein in the Site, any parcel or subparcel, or in the Agency Parcel.
Subject to Section 500 below, Agency shall have the right, if this Agreement or the
covenants are breached, to exercise all rights and remedies and to maintain any actions or
suits at law or in equity or other proper proceedings to enforce the curing of such
breaches to which it or any other beneficiaries of this Agreement and the covenants may
be entitled.
V. [§500] DEFAULTS, REMEDIES AND TERMINATION
A. [§501] Defaults— General
Subject to the extensions of time set forth in Section 604, failure or delay
by either party to perform any term or provision of this Agreement shall constitute a
breach of this Agreement and, following written notice by the other party and failure to
cure as hereinafter described, shall constitute a "Default" under this Agreement. The
party who so fails or delays must immediately commence to cure, correct or remedy such
failure or delay and shall complete such cure, correction or remedy with reasonable
diligence following written notice of such failure or delay and during any period of
curing shall not be in Default.
The injured party shall give written notice of a breach to the party in
breach specifying the breach complained of by the injured party. The injured party may
not institute proceedings against the party in breach until and unless the breaching party
is in Default. Failure or delay in giving such notice shall not constitute a waiver of any
breach nor shall it change the time of breach. Upon a failure by the breaching party to
commence to cure, correct or remedy such breach within the foregoing 30-day time
period, or having commenced the same, having failed to complete the same with
reasonable diligence, such breaching party shall be deemed in Default.
Except as otherwise expressly provided in this Agreement, any failure or
delay by either party in asserting any of its rights or remedies as to any breach shall not
operate as a waiver of any breach or Default or of any such rights or remedies or deprive
such party of its right to institute and maintain any actions or proceedings that it may
deem necessary to protect, assert or enforce any such rights or remedies.
29
589470.1
B. [§502] Legal Actions
1. [§503] Institution of Legal Actions
In addition to any other rights or remedies, but subject to
Section 204(4), either party may institute legal action to cure, correct or remedy any
Default, or recover actual damages for any Default, or to obtain any other remedy
consistent with the purpose of this Agreement. Such legal actions must be instituted in
the Superior Court of the County of Riverside, State of California. Notwithstanding
anything to the contrary contained in this Agreement, however, each party hereby waives
the right to sue the other party for incidental damages, consequential damages, punitive
damages or lost profits in connection with any Default by such other party hereunder.
2. [§504] Applicable Law; InteEpretation
The laws of the State of California shall govern the,interpretation
and enforcement of this Agreement.
This Agreement has been negotiated at arm's length and between
persons sophisticated and knowledgeable in the matters dealt with herein. In addition,
each party has been represented by experienced and knowledgeable legal counsel.
Accordingly, any rule of law (including California Civil Code Section 1654) or legal
decision that would require interpretation of any ambiguities in this Agreement against
the party that has drafted it is not applicable and is waived. The provisions of this
Agreement shall be interpreted in a reasonable manner to effect the purposes of the
parties and this Agreement.
3. [§505] Acceptance of Service of Process
In the event that any legal action is commenced by the Developer
against the Agency, service of process on the Agency shall be made by personal service
upon the Executive Director or in such other manner as may be provided by law.
In the event that any legal action is commenced by the Agency
against the Developer, service of process on the Developer shall be made by personal
service upon the Developer or in such other manner as may be provided by law and shall
be valid whether made within or without the State of California.
C. [§506] Rights and Remedies are Cumulative
Except as otherwise expressly stated in this Agreement, the rights and
remedies of the parties are cumulative, and the exercise by any party of one or more of
such rights or remedies shall not preclude the exercise by it, at the same time or different
times, of any other rights or remedies for the same Default or any other Default by the
other party.
30
559470 1
VI. [§600] GENERAL PROVISIONS
A. [§601] Notices, Demands and Communications Between the Parties
Formal notices, demands and communications between the Agency and
the Developer shall be sufficiently given if dispatched by registered or certified mail,
postage prepaid, return receipt requested, to the principal offices of the Agency and the
Developer as set forth in Sections 106 and 107 hereof. Such written notices, demands
and communications may be sent in the same manner to such other addresses as either
party may from time to time designate by mail.
B. [§602] Conflicts of Interest
No official or employee of the Agency shall have any personal interest,
direct or indirect, in this Agreement, nor shall any such official or employee participate in
any decision relating to this Agreement that affects his or her personal interests or the
interests of any corporation, partnership or association in which he or she is directly or
indirectly interested.
The Developer warrants that it has not paid or given, and will not pay or
give, any third person any money or other consideration for obtaining this Agreement.
C. [§603] Nonliabilitv
No official, officer, director, employee, partner, member or shareholder of
either party shall be personally liable to the other party in the event of any Default by
Agency or Developer, as applicable, or for any amount that may become due to the
Agency or Developer, as applicable, or on any obligations under the terms of this
Agreement. In connection therewith, each party hereby waives all rights to proceed
against any such official, officer, director, employee, partner, member or shareholder.
D. [§604] Enforced Delay: Extension of Times of Performance
In addition to the specific provisions of this Agreement, performance by
any party hereunder shall not be deemed to be in breach where delays or breaches are due
to war; act of terrorism; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires;
casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions;
freight embargoes; lack of transportation; governmental restrictions or priority; litigation;
unusually severe weather; inability to secure necessary labor, materials or tools; delays of
any contractor, subcontractor or supplier; acts of another party; acts or the failure to act of
any public or governmental agency or entity (except that acts or the failure to act of the
Agency shall not excuse performance by the Agency); or any other causes beyond the
control or without the fault of the party claiming an extension of time to perform. An
extension of time for any such cause shall only be for the period of the enforced delay,
which period shall commence to run from the time of the commencement of the cause.
If, however, notice by the party claiming such extension is sent to the other parties more
31
589470.1
than thirty (30) days after the commencement of the cause, the period shall commence to
run only thirty (30) days prior to the giving of such notice. Times of performance under
this Agreement may also be extended in writing by the Agency and the Developer.
E. [§605] Inspection of Books and Records
The Agency has the right, upon not less than seventy-two (72) hours
notice, at all reasonable times, to inspect the books and records of the Developer
pertaining to the Site as pertinent to the purposes of this Agreement.
The Developer also has the right, upon not less than seventy-two (72)
hours notice, at all reasonable times, to inspect the books and records of the Agency
pertaining to the Site as pertinent to the purposes of this Agreement.
F. [§606] [Reserved.l
G. [§607] Attorneys' Fees
Should any action be brought arising out of this Agreement including,
without limitation, any action for declaratory or injunctive relief, the prevailing party
shall be entitled to reasonable attorneys' fees and costs and expenses of investigation
incurred, including those incurred in appellate proceedings or in any action or
participation in, or in connection with, any case or proceeding under Chapter 7, 11 or 13
of the Bankruptcy Code or any successor statutes, and any judgment or decree rendered
in any such actions or proceedings shall include an award thereof.
VII. [§700] SPECIAL PROVISIONS
A. [§701] Amendment of Redevelopment Plan
Pursuant to provisions of the Redevelopment Plan for modification or
amendment thereof, the Agency agrees that no amendment that changes the uses or
development permitted on the Site or changes the restrictions or controls that apply to the
Site shall be made or become effective without the prior written consent of the
Developer, which may be granted or withheld by Developer in its sole discretion.
B. [§702] Submission of Documents to the Agency for Approval
Whenever this Agreement requires the Developer to submit plans,
drawings or other documents to the Agency for approval, which shall be deemed
approved if not acted on by the Agency within a specified time, said plans, drawings or
other documents shall be accompanied by a letter stating that they are being submitted
and will be deemed approved unless rejected by the Agency within the stated time. If
there is no time specified herein for such Agency action, the Developer may submit a .
letter requiring Agency approval or rejection of documents within thirty (30) days after
submission to the Agency or such documents shall be deemed approved.
32
589470 1
C. [§703] Amendments to this Agreement
The Developer and the Agency agree to mutually consider reasonable
requests for amendments to this Agreement that may be made by any of the parties
hereto, lending institutions or bond counsel or financial consultants to either party,
provided such requests are consistent with this Agreement and would not substantially
alter the basic business terms included herein.
D. [§704] Conflicts
In the event of a conflict between the terms and provisions of this
Agreement and the terms and provisions of the Attachments, the terms and provisions of
the Attachments shall control.
VIII. [§800] ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS
This Agreement is executed in four (4) duplicate originals, each of which is
deemed to be an original.
This Agreement integrates all of the terms and conditions mentioned herein or
incidental hereto, and supersedes all negotiations or previous agreements between the
parties with respect to all or any part of the subject matter hereof.
All waivers of the provisions of this Agreement must be in writing and signed by
the appropriate authorities of the Agency and the Developer, and all amendments hereto
must be in writing and signed by the appropriate authorities of the Agency and the
Developer.
If, at any time after the date on which this Agreement is approved, the Agency
and/or City approves an agreement for any hotel project in the City (including, but not
limited to, the Hard Rock Hotel project being proposed as of the date of this Agreement)
which is reasonably comparable to the Hotel and which agreement contains terms or
provisions that are materially more favorable to the Developer than the terms and
provisions contained herein, then the Developer shall have the right by written demand to
the Agency to require that this Agreement be amended to include all or any portion of
such favorable terms and provisions.
IX. [§9001 TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
This Agreement, when executed by the Developer and delivered to the Agency,
must be authorized, executed and delivered by the Agency within sixty(60) days after the
date of signature by the Developer or this Agreement shall be void, except to the extent
that the Developer shall consent in writing to further extensions of time for the
authorization, execution and delivery of this Agreement. The effective date of this
Agreement shall be the date when this Agreement has been signed by the Agency.
[Signature Page Follows]
33
589470J
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date(s) set forth below.
2008 COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM
SPRINGS, a public body, corporate and
politic
By:
David H. Read
Executive Director
"AGENCY"
Approved form: A/PRpy11® By TiiE
commutwry
9Y W 14K), 7 Dg u �r5 a5
Agency Counsel
2008 O & M H LC, a Delaware limited
liability c pany
Attest:
By:
Name:
itle: z Liz
es Thompson, Assistant Secretary
"DEVELOPER"
34
589470.I
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ATTACHMENT
Legal Description of Site
All that certain real property situated in the County of Riverside, State of California,
described as follows:
AGENCY PARCELS
Parcel l:
Those portions of Blocks 7, 8 and 1 I 1 as shown on Supplemental Plats of Section 14,
Township 4 South, Range 4 East, San Bernadine Base and Meridian,accepted by the
U.S. Department of Interior,General Land Office on September 27, 1927 and June 27,
1956,respectively described as follows:
Commencing at the Northwest corner of said Block I11, said point lying 30.00 feet
Southerly of the centerline of Andreas Road and 25.00 feet Easterly of the centerline on
Calle El Segundo;
Thence South 89'44' 45"East,parallel with and 30.00 feet Southerly of the centerline of
the centerline of said Andreas Road,a distance of 40.13 feet to the true point of
beginning;
Thence continuing South 89°44' 45"East a distance of 453.52 feet;
Thence South 00'03' 09"East, a distance of 363.53 feet to a point on the Southerly line
of said Block 8;
Thence North 89'55' 59" West, along the Southerly lines of Block 8 and Block 7, a
distance of 478.64 feet.
Thence North 00°03' 9"West,parallel with and 40.00 feet Easterly of,the centerline of
said Calle El Segundo,a distance of 339.97 feet to the beginning of the tangent curve,
concave Southeasterly,having a radius of 25.00 feet;
Thence Northeasterly along the arc of said curve through a central angle of 90° IS' 24"
an arc distance of 39.40 feet to the point of beginning.
Parcel 2:
Those portions of Blocks 8, 111 and vacated Calle Alvarado as shown on Supplemental
Plats of Section 14, Township 4 South,Range 4 East,San Bemadino Base and Meridian,
accepted by the U.S. Department of Interior,General Land Office on September 27, 1927
and June 27, 1956, respectively described as follows:
Beginning at the point of intersection of the centerline of vacated Calle Alvarado and the
Southerly right of way of Andreas Road,said right of way being parallel with and 30.00
feet South of the centerline of Andreas Road;
Thence South 00°06' 03"East, a distance of 362.89 feet along said centerline of vacated
Calle Alvarado to a point of intersection with the Easterly prolongation of the Southerly
line of said Block 8;
Thence North 89°55' 59"West,a distance of 197.00 feet along said Easterly
prolongation and said Southerly line of Block 8;
Thence North 000 03' 09"West, a distance of 363.53 feet to a point on aforementioned
Southerly right of way line of Andreas Road;
Thence South 89'44' 45"East, a distance of 196.70 feet along said Southerly right of
way to the point of beginning.
ATTACHMENT
Legal Description of Site
DEVELOPER PARCELS:
Parcel 1:
The land referred to in this policy is situated in the State of California,County of
Riverside and is described as follows:
Block 10 in the South half of the Northwest quarter of Section 14,Township 4 South,
Range 4 East, San Bernadino Base Meridian, according to the official plat of said land in
the District Office on June 11, 1927 as supplemented on May 12, 1960.
Parcel 2:
In the City of Palm Springs,County of Riverside, State of California,being those
portions of Block 9 and vacated Calle Alvarado as shown on Resolution No. 15302
recorded December 19, 1984 as Instrument No. 270713 of official records of said County
and supplemental plats of Section 14,Township 4 South, Range 4 East, San Bernadino
Base and Meridian, accepted by the United States Department of the Interior, General
Land Use Office on September 7, 1927 and June 27, 1956, respectively more particulary
described as follows:
Commencement point being the centerline intersection of said Calle Alvarado with the
East-West quarter section line of said Section 14 as shown on Tract No. 16043 recorded
in Book 116,Pages 88 and 89 of maps, in the office of the County Recorder of said
County;
Thence proceeding coincident with said quarter section line South W 58' 36"West,
30.01 feet;
Thence South 00°0 V 24" East, 5.59 feet to the Southeast corner of said Block 9 and the
true point of beginning;
Thence proceeding coincident of the Westerly line of said Block 9 North 00°04' 33"
West,264.11 feet to the Northwest comer of said Block 9, also being a point on the
Southerly line of Parcel I as shown in Grant Deed to Community Redevelopment
Agency of the City of Palm Springs, recorded January 24, 1995 as Instrument No.
021208 of official records of said County;
Thence proceeding coincident with the last said line, also being the Northerly line of said
Block 9,the Southerly line of Parcel 2 as shown on said Grant Deed and the Easterly
prolongation of the Northerly line of said Block 9 South 89"56' 24"East, 360.31 feet to
a point of intersection with the centerline of said Calle Alvarado;
Thence proceeding coincident with the centerline of Calle Alvarado South 00°06' 04"
East, 198.74 feet to the Westerly prolongation of the Northerly line of Tahquitz Canyon
Way as shown on amended map Tract No. 20485 recorded in Book 200, Pages 47 and 48
of maps, in the office of the County Recorder of said County;
Thence proceeding coincident with last said line South 89°58' 36" West 30.00 feet to the
Easterly line of said Block 9;
Thence proceeding coincident with last said line of South 00'06' 04"East, 65.59 feet to
the true point of beginning.
ATTACHMENT
Schedule of Performance
Iterntfl Be Prefcarmad Tama fi-4, 664i� g cement ;Estnrrated '
deference
The Developer executes and delivers DDA to Agency. On or before 06/15/08
The Agency approves or disapproves DDA and, if approves, On or before 08/31/08
executes DDA.
Submission-Certificate of Insurance- The Developer shall 30 Days prior to Section 308
famish to the Agency duplicate originals or appropriate commencement of
certificates of bodily injury and property insurance policies. construction
Approval-Certificates of Insurance- The Agency shall Within 10 days after Section 308
approve or disapprove Developer's submission of appropriate receipt thereof by the
certificates of bodily injury and property damage insurance Agency
policies.
Submission -Final Planned Development District/Final Section 204
Subdivision Map Application - The Developer shall prepare
and submit to the City Planning and Engineering
Departments for review and approval the Final PDD/Final
Subdivision Map and related documents containing the
overall plan for development of the site. The City process
includes the Architectural Advisory Committee, Planning
Commission, and City Council approval. Such final PDD
application shall include final Site Plan, Architectural Plans,
Landscaping and Grading Plans,Lighting Plans, and other
plans necessary to approve the Planned Development
District.
Submission-Evidence ofEouity Capital and Mortgage Within 30 months after Section 216
Financing- The Developer shall submit to the Agency for execution of this
review and approval,evidence of equity capital and mortgage Agreement by the
financing necessary for acquisition of the Conveyance parcel Agency and Developer.
and development of the site.
Approval -Evidence of FAuity Capital and Mortgage Within 30 days after Section 216
Financing- The Agency shall approve or disapprove the receipt thereof by the
Developer's evidence of equity capital and mortgage Agency.
financing.
Approval-Final Planned Development District and Final Within 60 days after Section 203
Subdivision May- The City shall approve or disapprove the receipt thereof by the
Developer's Final PDD/Final Subdivision Map submissions City.
and related documents.
Opening of Escrow- The Agency shall open an escrow for Within 30 days after Section 202
conveyance of the Conveyance Parcel to the Developer. the City approves
Developer's Final
PDD/Final Map
submissions and
related documents.
ATTACHMENT 3
Schedule of Performance
Itent:t t e i']efurtned rtxug Qt 'er€Ar rant e: Agreemeit Estimated,,
Reference " Date
Title Report-The Agency delivers to the Developer Within 30 days after
Preliminary Title Report. opening Escrow
Approval of Title Exceptions- The Developer approves or Within 15 days after
disapproves title exceptions. delivery of Preliminary
Title Report to
Develo er.
The Agency delivers notice to the Developer as to whether it Within 15 days after
will cure disapproved exceptions. receipt of Developer's
notice.
Submission -Hotel Construction (Building)Plans and Within 270 days after Section 304
Grading Plans - The Developer shall prepare and submit to approval by the City of
the City for review and approval Final Hotel Building Plans the Final PDD/Final
and Grading Plans for the site. Mat).
Approval-Hotel Construction(Building) Plans and Grading Within 60 days after Section 305
Plans - The City shall approve or disapprove Final Hotel receipt thereof by the
Building Plans and Grading Plans. Agency.
Submission-Hotel Management Agreement - The At least 45 days prior Section 402
Developer shall submit the Hotel Management Agreement to to the scheduled close
the Agency for review and approval. of escrow.
Approval -Hotel Management Agreement- The Agency Within 30 days after Section 402
shall approve or disapprove the Developer's Hotel receipt thereof by the
Management Agreement. Agency.
Deposit-Purchase Price and Other Required Sums- The Upon demand of Section 208
Developer shall deposit the purchase price of Agency Parcel escrow.
and other required sums into escrow.
Deposit-Grant Deed- The Agency shall deposit the Grant At least 15 days prior Section 207
Deed for the Conve ance Parcel into escrow. to close of escrow.
Escrow-Fees and Charges- Escrow Agent gives notice of One (1)week prior to
fees charges and costs to close escrow. closing.
Close of Escrow -Recordation and Delivery of Documents- As soon as possible
The Agency shall convey fee title to the Agency Parcel to the upon receipt of all
Developer, and the Developer shall accept such conveyance. documents required to
The Escrow Agent shall cause the Grant Deed and Deed of close.
Trust to be recorded with the Riverside County Recorder.
Land Use -Approvals and Permits - The Developer shall Within 60 days after Section 3l l
furnish evidence that all discretionary land use or regulatory close of escrow and
approvals and permits for the development of the site. issuance of permits.
Commencement of Construction of Developer's Within 30 days Section 307
Improvements-The Developer shall commence construction following close of
of the improvements to be constructed on the site. escrow.
ATTACHMENT 3
Schedule of Performance
+Beliefs ed = a meforT'et otvtanee geetrrent etmtate „`
'r #eace=
Completion of Construction of Developer's Improvements - Within 30 months Section 307
The Developer shall complete construction of the following
improvements to be constructed on the site. commencement of
construction.
Issuance -Certificate of Completion - The Agency shall Promptly after Section 323
furnish the Developer with a Certificate of Completion on the completion of all
hotel development. construction required
to be completed by the
Developer on the site
and upon written
request thereof by the
Developer.
It is understood that the foregoing Schedule of Performance is subject to all of the terms and conditions set forth
in the text of the Agreement. The summary of the items of performance in this Schedule of Performance is not
intended to supersede or modify the more complete description in the text; in the event of any conflict or
inconsistency between this Schedule of Performance and the text of the Agreement, the text shall govern.
The time periods set forth in this Schedule of Performance may be altered or amended only by written
agreement signed by both the Developer and the Agency. A failure of any party to enforce a breach of any
particular time provision shall not be construed as a waiver of any other time provision. The Executive Director
of the Agency shall have the authority to approve extensions of time without Agency Board action not to exceed
a cumulative total of 180 days as provided in Section 903.
ATTACHMENT NO. 4
SCOPE OF DEVELOPMENT
Private Development
The Site shall be developed in accordance with Planned Development District 339. The
Hotel shall include not less than 400 and up to 499 hotel rooms and/or condominiums,
nine(9) stories in height, including the following amenities and related uses: a minimum
of 15,000 square feet of meeting and banquet space; three restaurants ranging from
approximately 3,000 to 8,000 square feet each; ancillary retail space; night club;
approximately 15,000 square foot spa and fitness center; an approximate 3 acre
pool/recreation deck; and an adjacent 530-space above ground parking structure.
Public Improvement Work
In addition to the Private Development work set forth above, the Developer shall
perform, or cause to be performed, within the time established in the Schedule of
Performance (Attachment No. 3) the following work in connection with the development
of the Site (collectively, the"Public Improvement Work"):
a. Demolition of the existing publicly-owned parking lot, including but not
limited to the removal of all pavement, sidewalk, driveway, curb and gutter,
landscaping, lighting, block wall and related costs associated thereto.
b. Demolition of existing improvements within the public right of way, including
pavement, sidewalk, curb, gutter and driveways.
c. Construction of new improvements within the public right of way, including
but not limited to the following and as further summarized in Schedule A
attached hereto:
a. Pavement replacement and repair
b. Curb, gutter, sidewalk, driveways
c. Enhanced intersection pavement
d. Pavement striping and signing
e. Median construction and landscape
f. Landscaping and irrigation within the public right of way
g. Landscaping, irrigation, hardscape within Calle Alvarado
It. Street lighting per Section 14 Plan
i. Traffic signalization (shared cost or installation)
j. Water, sewer and storm drain connections to the property line
The precise nature, scope and specifications relating to the Public Improvement Work
shall be included as part of the drawings, plans and related documents to be prepared and
submitted by the Developer to the Agency for review and approval pursuant to Sections
301 through 305 of the Agreement.
Attachment No.4,Page 1
189470.1
As provided in Section 313 of the Agreement, the Agency shall reimburse the Developer
for all Costs relating to the Public Improvement Work(but not to exceed $3,000,000).
Attachment No.4,Page 2
589G701
Schedule A to Attachment No. 4
Attachment No.4,Page 3
589470.1
ATTACHMENT NO. 5
FORM OF GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
GRANT DEED
For valuable consideration, the receipt of which is hereby acknowledged,
THE REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a
public body, corporate and politic, exercising governmental functions and powers and
organized and existing under the Community Redevelopment Law of the State of
California (Health and Safety Code Section 33000 etseq.) (herein called "Grantor"),
acting to carry out the Redevelopment Plan (herein called "Redevelopment Plan") for the
Palm Springs Merged Redevelopment Project Area No. 2, under the Community
Redevelopment Law, hereby grants to O & M HR, LLC, a Delaware limited liability
company (herein called "Grantee"), the real property (the "Site") legally described in the
document attached hereto, labeled Exhibit A, and incorporated herein by this reference.
1. The Site is conveyed subject to the Disposition and Development
Agreement (the "DDA") entered into by and between the Grantor and the Grantee. The
Site is also conveyed subject to easements of record.
2. The Grantee hereby covenants and agrees, for itself and its successors and
assigns, that during construction and thereafter, the Grantee shall use the Site and the
improvements thereon only for a Hard Rock hotel and meeting space with parking and
related uses as further described in the DDA. The Grantee shall use the Site and the
improvements thereon for no other purpose without the prior written consent of the
Grantor. The foregoing covenant shall run with the land.
3. Prior to the issuance of a Certificate of Completion for the Developer
Improvements (as defined in the DDA) by the Grantor as provided in the DDA, the
Grantee shall not, except as permitted by the DDA, sell, transfer, convey, assign or lease
Attachment No.5,Page 1
5899'0.1
the whole or any part of the Site without the prior written approval of the Grantor. This
prohibition shall not apply subsequent to the issuance of the Certificate of Completion for
the Developer Improvements. This prohibition shall not be deemed to prevent the
granting of easements or permits to facilitate the development of the Site or to prohibit or
restrict the leasing of any part or parts of a building or structure when said improvements
are completed.
4. The Grantee covenants by and for itself and any successors in interest that
there shall be no discrimination against or segregation of any person or group of persons
on any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as
those bases are defined in Section 12926, 12926.1, subdivision (m) and paragraph (1) of
subdivision (p) of Section 12955, and Section 12955.2 of the Government Code in the
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall
the Grantee itself or any person claiming under or through it establish or permit any such
practice or practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees
in the Site.
All deeds, leases or contracts made relative to the Site, the improvements
thereon or any part thereof shall contain or be subject to substantially the following
nondiscrimination clauses:
a. In deeds: "The grantee herein covenants by and for himself
or herself, his or her heirs, executors, administrators, and
assigns, and all persons claiming under or through them,
that there shall be no discrimination against or segregation
of any person or group of persons on any basis listed in
subdivision (a) or (d) of Section 12955 of the Government
Code, as those bases are defined in Section 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of
Section 12955, and Section 12955.2 of the Government
Code in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the premises herein conveyed, nor
shall the grantee, or any person claiming under or through
him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy of
tenants, lessees, subtenants, sublessees or vendees in the
premises herein conveyed. The foregoing covenants shall
run with the land."
b. In leases: "The lessee herein covenants by and for himself
or herself, his or her heirs, executors, administrators and
assigns, and all persons claiming under or through him or
her, and this lease is made and accepted upon and subject to
the following conditions:
Attachment No.5, Page 2
58947M
"That there shall be no discrimination against or
segregation of any person or group of persons on any basis
listed in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in
Section 12926, 12926.1, subdivision (m) and paragraph (1)
of subdivision (p) of Section 12955, and Section 12955.2 of
the Government Code in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment of the
premises herein leased, nor shall the lessee himself or
herself, or any person claiming under or through him or
her, establish or permit any such practice or practices of
discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants,
lessees, sublessees, subtenants or vendees in the premises
herein leased."
C. In contracts: "There shall be no discrimination against or
segregation of any person or group of persons on any basis
listed in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in
Section 12926, 12926.1, subdivision (m) and paragraph (1)
of subdivision (p) of Section 12955, and Section 12955.2 of
the Government Code in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the premises, nor
shall the transferee himself or herself, or any person
claiming under or through him or her, establish or permit
any such practice or practices of discrimination or
segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, sublessees,
subtenants or vendees in the premises."
5. No violation or breach of the covenants, conditions, restrictions,
provisions or limitations contained in this Grant Deed shall defeat or render invalid or in
any way impair the lien or charge of any mortgage, deed of trust or other financing or
security instrument permitted by the DDA, provided, however, that any successor of
Grantee to the Site shall be bound by such remaining covenants, conditions, restrictions,
limitations and provisions, whether such successor's title was acquired by foreclosure,
deed in lieu of foreclosure, trustee's sale or otherwise.
6. Except as otherwise provided, the covenants contained in paragraph 2 of
this Grant Deed shall remain in effect until the termination date of the Redevelopment
Plan. The covenants against discrimination contained in paragraph 4 of this Grant Deed
shall remain in perpetuity. The covenants contained in paragraph 3 shall remain in effect
until issuance of a Certificate of Completion pursuant to the DDA.
Attachment No.5,Page 3
5894701
7. The covenants contained in paragraphs 2, 3 and 4 of this Grant Deed shall
be binding for the benefit of the Grantor, its successors and assigns, and any successor in
interest to the Site or any part thereof, and such covenants shall run in favor of the
Grantor and such aforementioned parties for the entire period during which such
covenants shall be in force and effect, without regard to whether the Grantor is or remains
an owner of any land or interest therein to which such covenants relate. The Grantor and
such aforementioned parties, in the event of any breach of any such covenants, shall have
the right to exercise all of the rights and remedies and to maintain any actions at law or
suits in equity or other proper proceedings to enforce the curing of such breach. The
covenants contained in this Grant Deed shall be for the benefit of and shall be
enforceable only by the Grantor, its successors and such aforementioned parties.
8. In the event of any express conflict between this Grant Deed or the DDA,
the provisions of this Grant Deed shall control.
9. Any amendments to the Redevelopment Plan that change the uses or
development permitted on the Site or change the restrictions or controls that apply to the
Site shall require the written consent of the Grantee, which may be granted or withheld
by Grantee in its sole discretion.
IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument
to be executed on their behalf by their respective officers thereunto duly authorized
this_day of , 2008.
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM
SPRINGS, a public body, corporate and
politic
By:
Title:
"GRANTOR"
Approved as to form:
Agency Counsel
Attachment No.5,Page 4
5894M 1
The provisions of this Grant Deed are hereby approved and accepted.
12008 O&M H LLC, a Delaware limited
liability co y
By:
Title:
"GRANTEE"
Attachment No.5,Page 5
589470.1
ACKNOWLEDGMENTS
Attachment No.5,Acknowledgments
5g9470.1
EXHIBIT A
LEGAL DESCRIPTION OF THE SITE
[To Be Inserted.]
Attachment No.5,Exhibit A 8/I/2008
589470 1
ATTACHMENT
Legal Description of Site
All that certain real property situated in the County of Riverside, State of California,
described as follows:
AGENCY PARCELS
Parcel 1:
Those portions of Blocks 7, 8 and I I 1 as shown on Supplemental Plats of Section 14,
Township 4 South, Range 4 East, San Bemadino Base and Meridian, accepted by the
U.S. Department of Interior,General Land Office on September 27, 1927 and June 27,
1956, respectively described as follows:
Commencing at the Northwest comer of said Block 111, said point lying 30.00 feet
Southerly of the centerline of Andreas Road and 25.00 feet Easterly of the centerline on
Calle El Segundo;
Thence South 89°44' 45"East,parallel with and 30.00 feet Southerly of the centerline of
the centerline of said Andreas Road,a distance of 40.13 feet to the true point of
beginning;
Thence continuing South 89°44' 45"East a distance of 453.52 feet;
Thence South 00'03' 09" East, a distance of 363.53 feet to a point on the Southerly line
of said Block 8;
Thence North W 55' 59"West, along the Southerly lines of Block 8 and Block 7,a
distance of 478.64 feet;
Thence North 00'03' 9"West,parallel with and 40.00 feet Easterly of, the centerline of
said Calle El Segundo, a distance of 339.97 feet to the beginning of the tangent curve,
concave Southeasterly, having a radius of 25.00 feet;
Thence Northeasterly along the are of said curve through a central angle of 90° 18' 24"
an are distance of 39.40 feet to the point of beginning.
Parcel 2:
Those portions of Blocks 8, 111 and vacated Calle Alvarado as shown on Supplemental
Plats of Section 14, Township 4 South,Range 4 East,San Bemadino Base and Meridian,
accepted by the U.S. Department of Interior,General Land Office on September 27, I927
and June 27, 1956,respectively described as follows:
Beginning at the point of intersection of the centerline of vacated Calle Alvarado and the
Southerly right of way of Andreas Road,said right of way being parallel with and 30.00
feet South of the centerline of Andreas Road;
Thence South 00'06' 03"East, a distance of 362.89 feet along said centerline of vacated
Calle Alvarado to a point of intersection with the Easterly prolongation of the Southerly
line of said Block 8;
Thence North 89'55' 59" West, a distance of 197.00 feet along said Easterly
prolongation and said Southerly line of Block 8;
Thence North 00°03' 09"West, a distance of 363.53 feet to a point on aforementioned
Southerly right of way line of Andreas Road;
Thence South 89°44' 45" East, a distance of 196.70 feet along said Southerly right of
way to the point of beginning.
ATTACHMENT 2
Legal Description of Site
DEVELOPER PARCELS:
Parcel 1:
The land referred to in this policy is situated in the State of California,County of
Riverside and is described as follows:
Block 10 in the South half of the Northwest quarter of Section 14,Township 4 South,
Range 4 East, San Bemadino Base Meridian, according to the official plat of said land in
the District Office on June 11, 1927 as supplemented on May 12, 1960.
Parcel 2:
In the City of Palm Springs,County of Riverside, State of California, being those
portions of Block 9 and vacated Calle Alvarado as shown on Resolution No. 15302
recorded December 19, 1984 as Instrument No. 270713 of official records of said County
and supplemental plats of Section 14,Township 4 South, Range 4 East, San Bemadino
Base and Meridian, accepted by the United States Department of the Interior, General
Land Use Office on September 7, 1927 and June 27, 1956,respectively more particulary
described as follows:
Commencement point being the centerline intersection of said Calle Alvarado with the
East-West quarter section line of said Section 14 as shown on Tract No. 16043 recorded
in Book 116, Pages 88 and 89 of maps, in the office of the County Recorder of said
County;
Thence proceeding coincident with said quarter section line South 890 58' 36"West,
30.01 feet;
Thence South 00°01' 24"East, 5.59 feet to the Southeast comer of said Block 9 and the
true point of beginning;
Thence proceeding coincident of the Westerly line of said Block 9 North 00°04' 33"
West,264.11 feet to the Northwest comer of said Block 9, also being a point on the
Southerly line of Parcel 1 as shown in Grant Deed to Community Redevelopment
Agency of the City of Palm Springs,recorded January 24, 1995 as Instrument No.
021208 of official records of said County;
Thence proceeding coincident with the last said line,also being the Northerly line of said
Block 9,the Southerly line of Parcel 2 as shown on said Grant Deed and the Easterly
prolongation of the Northerly line of said Block 9 South 89°56' 24" East, 360.31 feet to
a point of intersection with the centerline of said Calle Alvarado;
Thence proceeding coincident with the centerline of Calle Alvarado South 00°06' 04"
East, 198.74 feet to the Westerly prolongation of the Northerly line of Tahquitz Canyon
Way as shown on amended trap Tract No. 20485 recorded in Book 200, Pages 47 and 48
of maps, in the office of the County Recorder of said County;
Thence proceeding coincident with last said line South 89°58' 36" West 30.00 feet to the
Easterly line of said Block 9;
Thence proceeding coincident with last said line of South 00°06' 04" East, 65.59 feet to
the true point of beginning.