HomeMy WebLinkAbout2/18/2015 - STAFF REPORTS - 2.R. p p l M SA4
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CQ<IFolt CITY COUNCIL STAFF REPORT
DATE: February 18, 2015 CONSENT AGENDA
SUBJECT: APPROVE THE FIRST AMENDMENT TO AND ASSIGNMENT AND
ASSUMPTION OF A SUBDIVISION IMPROVEMENT AGREEMENT (A5393)
BETWEEN LV PALM SPRINGS VILLAGE, LLC, (ASSIGNOR), FCA CA, LLC,
(ASSIGNEE), AND THE CITY OF PALM SPRINGS REGARDING TRACT MAP
NO. 31848-1 (AVALON), NORTH INDIAN CANYON DRIVE AND SUNRISE
PARKWAY
FROM: David H. Ready, City Manager
BY: Douglas Holland, City Attorney
SUMMARY
LV Palm Springs Village, LLC, the current owner of the 300 acre development located on the
east side of Indian Canyon Drive north of San Rafael Drive, approved as "Avalon", also known
as the "Palm Springs Village" project, is in the process of selling the project to FCA CA, LLC.
A final map has been recorded for approximately one-half of the project and a subdivision
improvement agreement is still in effect. The proposed "First Amendment" would amend the
existing subdivision improvement agreement to substitute the purchaser, FCA CA, LLC, as the
entity obligated to comply with the obligations under the subdivision improvement agreement,
authorize the substitution of new security instruments from FCA CA, LLC, and provide for
revised completion dates for the improvements.
RECOMMENDATION:
1. Approve a First Amendment to and Assignment and Assumption of Subdivision
Improvement Agreement for Tract Map 31848-1 ("Avalon"), A5393, between LV Palm
Springs Village, LLC, as Assignor, FCA CA, LLC, as Assignee, and the City of Palm
Springs, subject to the City Attorney's final review and approval; and
2. Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
LV Palm Springs Village, LLC, is the successor to SunCal PSV, LLC, a Delaware limited
liability company ("SunCal"). SunCal and the City entered into a Subdivision Improvement
Agreement ("SIA") dated December 18, 2006, (A5393), and recorded on February 16, 2007, in
conjunction with recordation of Tract Map 31848-1 consisting of approximately one-half of the
Palm Springs Village project, generally located at the southeast corner of North Indian Canyon
and Sunrise Parkway. The City has continued to extend the effectiveness of the SIA through a
series of resolutions adopted by the City Council, and the current termination date of the
Original SIA is May 4, 2015.
ITEM NO. ��
City Council Staff Report
February 18, 2015 Page 2
First Amendment to TM 31848-1 Subdivision Agreement
As set forth in the SIA, LV Palm Springs Village, LLC, is obligated to construct and install
certain improvements to accommodate the development of the Tract. The SIA also required
the posting of bonds as security for the faithful performance of the work required under the
SIA. In accordance with the SIA, LV Palm Springs Village, LLC, has installed substantial
components of the required work; however, the work was not completed and some of the work
that had been installed has deteriorated or been vandalized, and may otherwise require repair.
LV Palm Springs Village, LLC, is in the process of selling its interests in the project to FCA CA,
LLC, and have opened escrow to affect the ultimate sale and transfer of the project. Pursuant
to the terms of the sale, the FCA CA, LLC, has agreed to assume the all of the obligations of
LV Palm Springs Village, LLC, under the SIA and to replace the existing security with the
replacement bonds.
Under the terms of the proposed First Amendment, the City will permit FCA CA, LLC, a
reasonable period of time in which to evaluate and repair the installed improvements and to
complete the remaining work; waive and/or deem cured all defaults, if any, of LV Palm Springs
Village, LLC, that may have occurred under the SIA prior to the assignment; extend the time
period for performance of the SIA.
Staff recommends that the City Council approve, subject to the City Attorney's final review and
approval, the proposed First Amendment to and Assignment and Assumption of Subdivision
Improvement Agreement for Tract Map 31848-1 ("Avalon"), Agreement No. 5393; a copy of the
draft First Amendment is included as Attachment 1.
FISCAL IMPACT:
None
SUBMITTED:
Prepared by:
/ /
Marcus L. Fuller, MPA, P.E., P.L.S. Dougla Holland
Assistant City Manager/City Engineer City Attorney
Approved by:
�✓f
David H. Ready,
City Manager
Attachment:
1. First Amendment to SIA TM 31848-1 "Avalon"
02
WHEN RECORDED MAIL TO:
FCA CA, LLC
c/o Freehold Capital Management LLC
500 Boylston St, Suite 1870
Boston, MA 02116
Attention: Casey Tischer and Jesse Baker
(Space above this line is for recorder's use)
FIRST AMENDMENT TO AND
ASSIGNMENT AND ASSUMPTION OF
SUBDIVISION IMPROVEMENT AGREEMENT
THIS FIRST AMENDMENT TO AND ASSIGNMENT AND ASSUMPTION OF SUBDIVISION
IMPROVEMENT AGREEMENT("Assignment") is made this day of 2015
("Assignment Effective Date"),by and among LV PALM SPRINGS VILLAGE LLC, a Delaware limited
liability company("Assignor"),FCA CA,LLC,a Delaware limited liability company("Assignee"),and the
City of Palm Springs, California, a municipal corporation("City").
RECITALS
A. Assignor,as successor-in-interest to SunCal PSV,LLC,a Delaware limited liability company
("SunCal"),and the City entered into that certain Subdivision Improvement Agreement dated December 18,
2006 and recorded on February 16,2007 as Document No.2007-0113033 in the Official Records of Riverside
County, California (the "Original SIA"), a copy of which is attached hereto as Exhibit A and fully
incorporated herein by this reference, relating to the development of the property described by Tract Map
No.31848-1 approved by the City and filed in 2006(the"Property"). Initially capitalized terms used and not
otherwise defined herein shall have the meanings set forth in the Original SIA.
B. The City has continued to extend the effectiveness of the Original SIA through a series of
resolutions adopted by the City Council,and the current termination date of the Original SIA is May 4,2015.
C. As set forth in the Original SIA,Assignor(as successor-in-interest to SunCal),as Subdivider,
has agreed to construct and install certain improvements to accommodate the development of Tract Map No.
31848-1. Pursuant to Section 4.1(a)of the Original SIA,Subdivider has provided the City with those certain
bonds,a list of which is set forth on Exhibit B attached hereto and fully incorporated herein by this reference
(collectively,the"Existing Security Instruments"),each as security for the Assignor's faithful performance
of the work required under the Original SIA, including without limitation, construction of the Works of
Improvement.
D. In accordance with the Original SIA,Subdivider installed,on the Property and on adjoining
property subject to Tentative Tract Map 31848(the"Adjoining Property",and together with the Property,
collectively, "Real Property"), substantial components of the Works of Improvement that were originally
inspected by the City (the "Installed Improvements"). Subsequent to installation of the Installed
Improvements,work ceased on the Real Property and the Installed Improvements may have, in some cases,
deteriorated or been vandalized,and may otherwise require repair.
LEGAL_US_W 4 80783143. 31 03
E. Assignor,as seller,and Assignee,as buyer,have opened escrow with Fidelity National Title
Insurance Company ("Escrow Holder") to enable transfer of the Real Property and other tangible and
intangible property from Assignor to Assignee, as more specifically described in an additional agreement
between Assignor and Assignee(the"Transfer Agreement")(the closing of the transaction described in the
Transfer Agreement is referred to herein as the"Close of Escrow").
F. Pursuant to the Transfer Agreement,Assignor has agreed,among other things,to assign the
Original SIA to Assignee and Assignee has agreed, among other things,to assume the Original SIA and to
replace the Existing Security Interests with the Approved Replacement Bonds(as defined below)upon the
terms and conditions set forth in the Transfer Agreement.
G. Assignor desires to assign to Assignee,without representation or warranty,all of Assignor's
rights, titles, interests, benefits, privileges, claims, duties, and obligations (collectively, the "Interests")
pursuant to, contained within and in accordance with the Original SIA, as amended hereby and, subject to
receipt of the assurances and other agreements of the City set forth herein, Assignee desires to assume the
Interests in accordance with the terms of this Assignment.
H. City and Assignee further desire to amend the Original SIA as further set forth herein in order
to(1)permit Assignee,as Subdivider,a reasonable period of time in which to evaluate and repair the Installed
Improvements and to complete the remaining Works of Improvement, (2)to waive and/or deem cured all
defaults, if any, of Subdivider that may have occurred under the Original SIA prior to the Assignment
Effective Date, and (3) to extend the time period for performance of the Original SIA pursuant to the
provisions of this Assignment.
AGREEMENT
NOW,THEREFORE, for good and valuable consideration,the receipt and sufficiency of which
are acknowledged, the parties agree as follows.
1. Assignment and Assumption
1.1 Assignor hereby grants, transfers and assigns to Assignee all of Assignor's Interests
pursuant to,under,and contained within the Original SIA,as amended by this Assignment,without recourse,
representation or warranty.
1.2 Assignee hereby fully accepts the foregoing assignment and unconditionally assumes
and agrees to perform,in a timely manner,all of the duties and obligations of Subdivider arising pursuant to,
under or contained within the Original SIA, as amended by this Assignment (the Original SIA, as so
amended,the"SIA"),with the same force and effect as ifAssignee had initially executed the Original SIA as
the Subdivider. Assignee agrees and acknowledges that,upon execution of this Assignment,Assignee shall
become the Subdivider under the SIA.
1.3 The assignment of the Interests of Assignor in this Assignment is in no way intended
(and in no way implies)to change any of the terms or conditions of the Transfer Agreement nor is it intended
to imply that Assignor is making any warranty or representation to Assignee or that any of the improvements
contemplated by the Original SIA may be accomplished or are feasible. Nothing contained in this
Assignment shall modify in any way any provisions of the Transfer Agreement.
2. Exoneration and Replacement of Existing Security Interests. The City hereby agrees that
upon(a)delivery by Assignee to City of bonds in form and substance approved by the City and fully executed
by Lexon Surety Group(the approved bonding company)and Assignee("Approved Replacement Bonds"),
LEGAL_US_W 9 80783143, 32 04
and(b)satisfaction of the Release Conditions(as defined in the Supplemental Escrow Instructions attached
hereto as Exhibit C and incorporated herein by this reference),including without limitation,fulfilment of the
conditions to Close of Escrow under the Transfer Agreement,City shall return the Existing Security Interests
to Assignor. Notwithstanding the foregoing,the City agrees that,upon request from Assignor,it shall execute
and deliver a separate letter stating that stating that Assignor,SunCal and the applicable bonding companies
and/or sureties with respect to the Existing Security Interests are released and exonerated from any and all
liability with respect to the Original SIA and the Existing Security Interests,which letter shall enclose and
release the originals of each of the Existing Security Interests.
3. Release.
3.1 This Assignment shall constitute the City's release and exoneration of Assignor,
SunCal and their applicable bonding companies and/or sureties with respect to the Existing Security Interests
and from any and all liability with respect to the Original SIA and the Existing Security Interests. After
execution of this Assignment by all parties,Assignor shall have no obligation to Assignee or to the City and
shall have no liability of any nature under the SIA.
3.2 In this regard, Assignee and City, each for itself and for their respective members,
agents,employees,predecessors,successors,assigns,agents,and all other persons or entities who may claim
through it, does hereby release and forever discharge Assignor and its respective members, managers,
officers, shareholders, partners, directors, employees, agents, lenders, attorneys, successors, assigns. and
related and/or affiliated parties, from any and all manner of action, suit, lien, damage, expense (including
attorneys' fees), claim or demand of whatever nature heretofore or hereafter arising out of, related to,
connected with the SIA.
3.3 In connection with the general release set forth herein, each of Assignee and City
specifically waives the provisions of California Civil Code Section 1542,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."
Each of Assignee and City knowingly and voluntarily waives the provisions of Civil Code
Section 1542 and any other comparable provisions or principles of state, federal or common law and
acknowledges and agrees that this waiver is an essential and material term ofthis Assignment and the release
provisions contained herein and that,without such waiver,this Assignment would not have been entered into.
Each of Assignee and City understands and acknowledges the significance and consequences of the release
set forth herein and this specific waiver of Civil Code Section 1542 and all other comparable provisions or
principles of state,federal law or common law.
Assignee's Initials City's Initials
4. Effect of Assignment and Assumption. From and after the Assignment Effective Date,the
City and Assignee agree that: (a)Assignee shall be deemed a party to the Original SIA and any reference
therein to"Subdivider" shall be deemed to refer to Assignee; and (b)Assignee shall be entitled to exercise
and enforce the Original SIA as if Subdivider had been a signatory to the Original SIA or a beneficiary
thereunder as of the date of its original execution.
LEGAL_US_W#80783143. 33 05
5. Amendments to Original SIA; Extensions of Time Periods for Performance. The Original
SIA contains various dates for performance and the obligation for continuous performance by Subdivider
fallowing the commencement of construction of the Works of Improvement(as required by Section 2.4 of the
Original SIA)that have not been met and which,due to the passage of time,are not susceptible of cure and
that will not be capable of cure until such time as final development plans have been approved for the
Property To address this and to extend the time period for performance of obligations under the SIA, City
and Assignee hereby agree to amend the Original SIA as set forth below.
5.1 Notwithstanding any other provision of the SIA to the contrary,the City hereby fully
waives and releases Subdivider(as that term is used priorto,on and afrerthe Assignment Effective Date)with
respect to each and every default,if any,occurring prior to the Assignment Effective Date and hereby agrees
that, except with respect to its duty to deliver the Approved Replacement Bonds, Subdivider shall have no
obligation to perform the Works of Improvement or to carry out any other obligation under the SIA until the
Revised Commencement Date,
5.2 Commencement and Completion.Notwithstanding any other provision of the SIA to the
contrary:
5.2.1 The definition of"Commencement Date"as that term is used in Section 2.1
of the Original SIA shall be the date that is six(6)months following the later of(a)
the Assignment Effective Date or (b) the City's approval of completed final
development plans for the open space/golf course(the"Revised Commencement
Date").
5.2.2 The"Completion Date"as that term is used in the Original SIA shall be the
date that is two (2) years following the Revised Commencement Date, provided
that if the Works of Improvement are not completed by the Completion Date,the
City and Subdivider shall work in good faith to achieve completion within a
reasonable time period.The foregoing shall supersede any earlier termination date
approved by the City Council pursuant to one or more generally applicable
resolution(s) extending the dates of subdivision improvement agreements in the
City.
5.3 Extension of Deferred or Assigned Obligations. City and Assignee hereby agree with
respect to the provisions of Section 1.2(a)of the Original SIA:
5.3.1 The time period for performance by Subdivider of the Obligation pursuant
to Section 1.2(a) of the Original SIA has passed, and accordingly, as further
described therein,City hereby: (a)agrees that City has or hereby does assume the
Obligation, which is hereby deemed to be transferred to the City, (b) releases
Subdivider from any requirement to construct the Obligation, to enter into
negotiations and coordinate with RCFC in connection therewith or to have made a
payment of the Deposit prior to the Assignment Effective Date.
5.3.2 Notwithstanding any other provision of Section 1.2(a)to the contrary: (a)
the Deposit to be paid by Subdivider to the City shall be due and payable upon
issuance by the City of the first residential building permit upon a lot within Tract
Map No.31848-1 (and as a condition thereto)or upon such earlier date as physical
construction of the CV Link by RCFC or the City commences.
LEGAL_US_W N 80783143. 34 06
5.3.3 The City's right to construct the assigned Obligation shall be extended to
the date that is ten (10) years from the date of the payment of the Deposit by
Subdivider to City, or to any agreed extension of time thereof(the "Obligation
Date"),and if not completed by the Obligation Date,shal I be returned to the Home
Owners Association or other non-profit mutual benefit corporation established for
the residents within Tract Map No. 31848-1.
5.4 Community Facilities District for Public Safety Services. Prior to issuance of a
certificate of occupancy for any residential unit within the Property,Assignee agrees to support formation of
or annexation into a Community Facilities District(CFD)to include the Property,the proceeds of which shall
be used by the City to fund a portion of City public safety services, including police and fire
protection. Assignee further agrees to waive any right of protest or contest of such formation or annexation,
provided that the amount of any assessment for any single family dwelling unit(or the equivalency thereof
when applied to multiple family,commercial or industrial)as established through appropriate study shall not
exceed$500 annually per dwelling unit or dwelling unit equivalency unit,subject to an annual consumer price
index escalator. Prior to sale of any lots,or prior to the issuance of any certificate of occupancy,or prior to
any approval of the Building Official that will allow the premises to be occupied,the CFD shall be formed,
the annexation thereto shall occur, or at the option of the City Manager and Building Official, a covenant
agreement may be recorded against any affected parcel(s) within the Property, evidencing the Owner's
binding consent, approval,and waiver of rights as provided herein.
6. Effect of Assignment on Interpretation of SIA.
6.1 Interpretation of SIA. The City and Assignee hereby acknowledge and agree that,from
and after the Assignment Effective Date, certain rights, duties and obligations under the SIA shall be
interpreted as follows:
6.1.1 Assignee shall be responsible only for the accuracy and satisfaction of those
obligations,representations and warranties of the Subdivider arising from and after
the Assignment Effective Date; and
6.1.2 Components of the Installed Improvements may have deteriorated, been
vandalized, or otherwise require repair (such components, "Damaged
Components"). City agrees to cooperate with Assignee and to permit repair and
replacement of Damaged Components of the Works of Improvement rather than
complete removal and reinstallation thereof where feasible,provided that Assignee
acknowledges and agrees that City shall have all the rights of inspection and
acceptance of improvements set forth in the SIA.
6.1.3 City acknowledges that (a) Assignee is entering into this Assignment in
reliance upon the agreements of City contained in Section 5 of this Assignment to
waive defaults and extend the time period for performance by Assignee, and (b)
City hereby waives and hereafter shall be estopped from pursuing any rights or
remedies against Subdivider (as that term is used prior to, on and after the
Assignment Effective Date)in connection with any alleged breach ofthe SIA prior
to the Assignment Effective Date.
6.1.4 Notices, Demands and Communications to Subdivider from and after the
Assignment Effective Date shall go to Assignee as indicated below:
FCA CA, LLC
LEGAL_US_W#80783143. 3.5
07
c/o Freehold Capital Management LLC
500 Boylston St, Suite 1870
Boston, MA 02116
Attention: Casey Tischer and Jesse Baker
Phone: (617)221-8405
E-mail: ct@freeholdcm.com,jrb@freeholdcm.com
With a copy to:
Lubin Olson &Niewiadomski LLP
600 Montgomery Street, 141h Floor
San Francisco, CA 94111
Attention: Mark Lubin
Phone: (415)981-0550
Email: mlubin@lubinolson.com
and with a copy to:
Armbruster Goldsmith & Delvac LLLP
11611 San Vicente Blvd., Suite 900
Los Angeles, CA 90049
Attention: Amy Freilich
Phone: (310)209-8800
Email: amy@agd-landuse.com
6.1.5 Terms,No Other Chanties. Unless otherwise expressly indicated herein,all
references in Original SIA and in this Assignment to "this Agreement" or the
"SIA"shall mean and refer to the Original SIA as modified by this Assignment and
other than the amendments and changes herein,all provisions of the Original SIA
remain unmodified and in full force and effect. In the event of any conflict or
inconsistency between the terms ofthe Original SIA and this Assignment,the terms
of this Assignment shall control.
7. Miscellaneous Provisions.
7.1 Effectiveness. Notwithstanding anything to the contrary contained in this Assignment,
this Assignment shall be null and void,ab initio, if the Close of Escrow for the sale of the Real Property to
Assignor pursuant to the terms and conditions of the Transfer Agreement fails to occur on or before the
Outside Closing Date(as defined in the Transfer Agreement).
7.2 Entire Agreement. This Assignment, together with the Original SIA,constitutes the
entire agreement between the parties in regards to the subject matter contained herein.
7.3 Recitals. The Recitals above are incorporated herein by reference.
7.4 Governin>aw. This Assignment shall be governed by, interpreted under, and
construed and enforceable in accordance with the laws of the State of California.
7.5 Interpretation. All of the parties hereto have been represented by legal counsel of their
choice are not relying on any statement of the other party in entering herein. Each party has cooperated and
LEGAL_US_W#80783143. 36 08
participated in the drafting and the preparation of this Assignment. Hence,in any construction to be made of
this Assignment,no ambiguity shall be resolved against any party by virtue of that party's participation in the
drafting of this Assignment.
7.6 Severability. If any provision,section,paragraph,clause or sentence in this Assignment
is declared to be illegal,void, invalid,or unenforceable by a court or other authority with jurisdiction thereof,
the remaining provisions,paragraphs,clauses,and sentences shall be severable and shall remain in full force
and effect. The parties agree that a void or invalid paragraph,clause or provision shall not affect the validity
or enforceability of the remaining provisions of this Assignment.
7.7 Counterparts. This Assignment may be executed simultaneously in counterparts,each
of which shall be deemed an original,but all of which,together,shall constitute one and the same instrument.
7.8 Survival. All representations, warranties, covenants and agreements made by the
parties hereunder shall be considered to have been relied upon by the parties and shall survive the execution,
delivery and performance of this Assignment and all other documents contemplated herein.
7.9 Successors and Assigns. This Assignment shall be binding upon and inure to the
benefit of the successors,assignees,personal representatives,heirs and legatees of Assignor and the City and
shall be binding upon and inure to the benefit of all successors and assigns to Assignee's right, title and
interest in and to the Property.
7.10 Amendment.
7.10.1 Any amendment to Section 1 of this Assignment shall not be binding unless in
writing and executed by Assignor and Assignee but shall not require execution by
the City.
7.10.2 Any amendment to Sections 4, 5 and/or 6 of this Assignment shall be effective if
executed by the City and Assignee,as Subdivider underthe SIA,or any subsequent
Subdivider, but shall not require execution by Assignor.
7.10.3 Any amendment to Sections 2,3 and/or Section 6 of this Assignment shall require
execution of (1) Assignor, (2) Assignee, as Subdivider under the SIA, or any
subsequent Subdivider, and(3)the City.
7.11 Additional Documents. Each of the parties shall each execute and deliver to the other
parties, upon demand, such further documents, and shall take such further actions as are necessary or
desirable to effectuate the intent and purposes of this Assignment.
7.12 Authority. The persons signing below represent that they have the authority to bind
their respective party, and that all necessary board of directors', shareholders', partners', agency's or other
approvals have been obtained.
Signatures on following pages
LEGAL_US_W#80783143. 37 09
IN WITNESS WHEREOF,Assignor and Assignee have executed this Assignment as of
the day and year first written above.
"ASSIGNOR" LV PALM SPRINGS VILLAGE LLC,
a Delaware limited liability company
By:
Name:
Title:
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of[ 1
County of[ 1
On before me, (here
insert name and title of officer), personally appeared , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies� and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct
WITNESS my hand and official seal.
Signature (Seal)
[Signature Continues on Following Page]
LEGAL_US_W 4 80783143.3
10
"ASSIGNEE" FCA CA,LLC,
a Delaware limited liability company
By:
Name:
Title:
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of[ )
County of l I
On before me, (here
insert name and title of officer), personally appeared , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct
WITNESS my hand and official seal.
Signature (Seal)
LEGAL_US_W 4 80783143.3 11
ATTEST: CITY OF PALM SPRINGS,CALIFORNIA,
a municipal corporation
BY: By:
Name: Name:
City Clerk Title:
APPROVED AS TO FORM:
BY:
Doug Holland
City Attorney
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of[ ]
County of[ 1
On before me, (here
insert name and title of officer), personally appeared , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(iesl and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct
WITNESS my hand and official seal.
Signature (Seal)
LEGAL_US_W#80783143.3
Exhibit A
Original Subdivision Improvement Agreement
[attached]
LEGAL_US_W 4 80783143.3 13
Exhibit B
Security Instruments
[attached]
LEGAL_US_W 4 80783143.3 14
Exhibit C
Form of Supplemental Escrow Instructions
[date]
Fidelity National Title Insurance Company
Attention: Valerie Rapp("Escrow Agent")
1300 Dove Street, Suite 310
Newport Beach, CA 92660
Re: Supplemental Escrow Instructions—Palm Springs Village Avalon
Escrow No. ("Supplemental Escrow Instructions")
real property described by Tract Map No. 31848-1 and Tract Map 31848 (collectively, the "Real
Property")
Dear Ms. Rapp:
The undersigned LV PALM SPRINGS VILLAGE LLC, a Delaware limited liability company
("Assignor"), and FCA CA, LLC, a Delaware limited liability company ("Assignee"), are parties to that
certain dated ("Transfer Agreement")describing the terms and
conditions for sale by Assignor to Assignee of the Real Property and certain other tangible and intangible
property as more specifically described therein, and in accordance with the provisions of the Transfer
Agreement have opened the above referenced Escrow with you for purposes of consummating the"Close of
Escrow"as defined and described in the Transfer Agreement.
Assignor and Assignee,together with the City of Palm Springs, California(the"City"), hereby submit the
following joint Supplemental Escrow Instructions in order to cause Escrow Agent to undertake the actions
described below upon the occurrence of the Release Conditions(as defined below).
1. Assignor and Assignee Deliveries. In addition to those items to be delivered by each of Assignor and
Assignee under the Transfer Agreement, Assignor and Assignee each hereby agree to execute and
deliver the First Amendment to and Assignment and Assumption of Subdivision Improvement
Agreement("Assignment"),a copy of which is attached hereto for your reference,and to make the
further deliveries described below. Initially capitalized terms used and not otherwise defined herein
have the meanings set forth in the Assignment.
2. City Deliveries. Upon approval of the Assignment by the City Council of the City,the City hereby
agrees to deliver the documents and instruments described below required to be delivered by the City.
3. Release Conditions. Close of Escrow under the Transfer Agreement shall not take place and the
documents described below delivered by Assignor, Assignee and/or the City to Escrow Agent and
shall be held by Escrow Agent until each of the "Release Conditions" set forth below is satisfied.
The following constitute the"Release Conditions:"
LEGAL_US_W 9 80783143.3 15
(a) Escrow Agent shall have received written notice from Assignor and
Assignee that all conditions precedent to Close,of Escrow under the Transfer Agreement have been
satisfied or have been waived by the party for whose benefit such condition arose,and authorizing the
Close of Escrow to take place.
(b) Escrow Agent shall have received fully executed originals,
acknowledged where required, of all documents required by the Transfer Agreement to effect the
Close of Escrow and Escrow Agent shall have received from each of Assignor, Assignee and the
City, fully executed and acknowledged counterpart originals of the Assignment.
(c) Escrow Agent shall have received from the City one original of each
of the Existing Security Interests listed on Exhibit`B"to the Assignment and Escrow Agent shall
have received Assignor's written confirmation that such instruments comprise a full and complete set
of the Existing Security Interests.
(d) Escrow Agent shall have received from Assignee or its surety,fully
executed Approved Replacement Bonds for each of the required bonds listed on Exhibit"B"to the
Assignment and Escrow Agent shall have received City's and Assignee's written confirmation that
such instruments comprise a full and complete set of the Approved Replacement Bonds.
(e) Escrow Agent shall have submitted for recording the Grant Deed(as
defined in the Transfer Agreement)in accordance with the requirements of the Transfer Agreement.
4. Additional Closing Instructions. In order to effectuate the replacement of the Existing Security
Interests with the Approved Replacement Bonds,as required by the Assignment Agreement,Escrow
Agent are hereby instructed to carry out the following upon the satisfaction of each and every one of
the Release Conditions:
(a) Create a single original (by combining counterparts) of the
Assignment,date the Assignment as of the date of the Close of Escrow and cause the Assignment to
be recorded in the Official Records of Riverside County,immediately following the recording of the
Grant Deed,or as otherwise instructed by Assignor, Assignee and City.
(b) Deliver the originals of each of the Existing Security Interests to
Assignor.
(c) Deliverthe fullyexecuted Approved Replacement Bondstothe City.
(d) Upon recording of the Assignment in the Official Records,provide a
conformed copy of the Assignment Agreement to each of Assignor, Assignee and the City.
5. Return of Documents. Notwithstanding any other provision of the Transfer Agreement, the
Assignment Agreement or these Supplemental Instructions, in the event that each and every one of
the Release Conditions has not occurred(or been waived in writing by the parties)by February 27,
2015,Escrow Agent shall,unless otherwise instructed in writing by the City,Assignor and Assignee:
(a) return the Existing Security Interests to the City;
(b) return the Approved Replacement Bonds to Assignee; and
LEGAL_US_W p 80783143.3 16
(c) return the original counterparts of the Assignment Agreement signed
by each of the City,Assignor and Assignee to the signatory party, without recording.
Thereafter,your obligations under these Supplemental Escrow Instructions shall terminate.
By executing this letter below, you agree that you have read and understand these Supplemental Escrow
Instructions,and that you will be bound by the terms of these instructions that pertain to you as the Escrow
Holder (as such term is defined in the Transfer Agreement). If you are unable to comply with these
Supplemental Escrow Instructions or if there are to be any changes herein,you are not to proceed without
further written authorization from all of the Assignee,Assignor and the City. These Supplemental Escrow
Instructions may be modified or rescinded by the Assignee,Assignor and/or the City prior to the satisfaction
of the Release Conditions. Following the satisfaction of the Release Conditions,these Supplemental Escrow
Instructions shall become irrevocable and may only be modified orrescinded with the written consent of all of
the Assignee,the Assignor and the City. The recordation of the Grant Deed or other communication of the
Close of Escrow having taken place shall be deemed your irrevocable acceptance of these Supplemental
Escrow Instructions and your agreement to act strictly in accordance herewith irrespective of whether or not
you executed or delivered these Supplemental Escrow Instructions. However, we would appreciate your
acknowledgment that you have received these Supplemental Escrow Instructions and agreed to proceed in
accordance herewith by signing the enclosed copy of these Supplemental Escrow Instructions and returning
one signed copy to the undersigned as soon as possible.
Thank you for your assistance.
Very truly yours,
FCA CA, LLC, a Delaware
limited liability company
ADD NOTICE PROVISION AND SIGNATURE BLOCKS FOR CITY, ASSIGNOR,
ASSIGNEE
LEGAL US W N 80783143.3 17
JOINDER BY ESCROW HOLDER
Accepted and Agreed by Escrow Holder
Dated:
Fidelity National Title Insurance Company
By:
Authorized Signer
LEGAL_US_W#80783143.3 18