HomeMy WebLinkAbout6/20/2012 - STAFF REPORTS - 4.A. RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs,CA 92262
MAIL TAX STATEMENTS TO: DOCUMENTARY TRANSFER TAX: $
Computed on the consideration or value of
property conveyed;or
Computed on the consideration or value less liens or
encumbrances remaining at time of sale.
No consideration.
Signature of Declarant or Agent Determining Tax-
Firm Name
GRANT DEED
Grant of Fee Title by Grantor. Palm Springs Promenade, LLC, a California limited liability company
("Grantor"), as the owner of fee title to the real property legally described on Exhibit `A" attached hereto
("Entire Property"), hereby grants to the City of Palm Springs, a municipal corporation and charter city
("City"),the portions of the Entire Property legally described and depicted on Exhibit `B"attached hereto
("Granted Property"), and retains the portions of the Entire Property described on Exhibit "C" attached
hereto ("Retained Property"), subject to terms, covenants,conditions, restrictions,reservations, easements,
exceptions and agreements as set forth below:
(1)The Granted Property shall not be sold, transferred or conveyed to any person,entity,
or agency, other than to a successor public agency to the City or the Palm Springs Public
Financing Authority so long as such sale, transfer or conveyance is subject to the
authority and responsibility to fully comply with all of the terms, covenants, conditions,
restrictions, reservations, easements, exceptions and agreements contained in this grant
deed;
(2) City acknowledges that private facilities consisting of commercial, retail, office,
theater, hotel and residential uses are planned for construction and operation in the
vicinity of the Parking Facilities, and that such uses would not be possible or
economically viable without ongoing and continued operation and maintenance of the
Parking Facilities; accordingly, subject to City's rights to temporarily close all or a
portion of the Parking Facilities and/or otherwise limit vehicular and/or pedestrian access
as the City may reasonably determine is necessary for the restoration, demolition and
construction or reconstruction,or renovation of Parking Facilities,City agrees as follows:
(a)City shall operate,maintain,and use the Parking Facilities as and for free parking,in a
safe,sound, attractive,operational and top quality condition,in perpetuity,for the benefit
of the public, including without limitation Grantor, its authorized agents, employees,
guests,invitees and customers,and Grantor's authorized tenants and subtenants,and their
authorized agents, employees, guests, invitees and customers; (b) the Parking Facilities
and two existing escalators therein will be operated every day during all hours in which
any business in the Project(including any 24 hour fitness center) is open, and (c) during
any and all times when a hotel is open for business and operating within the Project,
surface and subsurface Parking Facilities within Parcel 11 and subsurface Parking
Facilities within Airspace Parcel 4 will be operated 24 hours a day,seven days a week.
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(3) The public, including without limitation Grantor, its authorized agents, employees,
guests, invitees, and customers, and Grantor's authorized tenants and subtenants, and
their authorized agents,employees,guests,invitees,and customers,shall have the right of
vehicular and pedestrian ingress and egress into and out of the Parking Facilities for
vehicle parking, and all ancillary and related vehicle and pedestrian use incidental
thereto;and
(4)City shall be responsible for all costs of operation,maintenance,repair,and use of the
Parking Facilities,and neither Grantor,nor any persons or entities benefited by terms and
conditions as set forth and referenced herein, including without limitation the public,
shall have any obligation to pay or share any such costs pursuant to Civil Code Section
845, or any other legal or equitable law, principle, or concept, or otherwise unless such
payments have been approved as part of a benefit assessment district by a vote of affected
persons in a manner provided by law.
For the purpose of this Grant Deed,the City's rights and requirements related to the use and maintenance of
the Parking Facilities includes without limitation to temporarily close all or a portion of the Parking
Facilities and/or otherwise limit vehicular and/or pedestrian access as the City may reasonably determine is
necessary for the restoration, demolition and construction or reconstruction, or renovation of Parking
Facilities.
The provisions of this grant deed may be enforced pursuant to the provisions of the Project Financing
Agreement dated September 29, 2011, between the City and Grantor (which is incorporated herein by
reference as though set forth in full). General provisions in Section 5 of said Project Financing Agreement
shall, to the maximum extent reasonable, appropriate and/or logical, be deemed and construed to have
applicability herein.
Reservation of Easements for Support Devices. Grantor, as the owner and for the benefit of the Retained
Property, and any and all portions thereof and any and all improvements now or hereafter constructed
and/or maintained thereon ("Retained Property"), specifically reserves and excepts, from the grant of fee
title set forth above, easements and rights(collectively"rights") of vertical and lateral support, as follows:
Grantor shall have rights, within any and all portions of the Granted Property,to construct,place,expand,
reinforce, install, etc. (collectively "install"), and operate, use, maintain, etc. (collectively "maintain"),
pillars, beams, towers, and any and all manner of related, similar and/or incidental improvements
(collectively"support devices"), as reasonably necessary, appropriate, expedient or convenient, to provide
vertical and lateral support for buildings (single and/or multi story) and related, similar and/or incidental
improvements, installed or to be installed over, under, on or across the Retained Property, subject to the
following:(i)to the extent actions and/or efforts to install and/or maintain support devices may be expected
to cause interference with normal activities within the Granted Property,Grantor shall(except in situations
requiring immediate or emergency action) provide reasonable advance notice to City; (ii) any actions
and/or efforts to install and/or maintain support devices shall be undertaken in a manner intended to
minimize, to the extent reasonable, the size of the area to be used for installation and/or maintenance of
support devices and the amount of interference caused thereby for normal activities within the Granted
Property; (iu)to the extent actions and/or efforts to install and/or maintain support devices cause physical
damage (other than as called for or contemplated by plans and/or specifications as approved by City) to
improvements within the Granted Property, Grantor shall, at Grantor's expense, repair such damage; (iv)
such improvements shall not, without City approval, reduce the number of parking spaces within the
Parking Facilities or impair or impede traffic ingress or egress into or through the Parking Facilities; and
(v) such improvements shall be subject to review and approval, as appropriate, by the City through the
City's normal planning,zoning,environmental,public safety,building,and fire review processes.
Reservation of Easements for Utility Facilities. Grantor, as the owner and for the benefit of the Retained
Property, specifically reserves and excepts, from the grant of fee title set forth above, rights, as follows:
Grantor shall have rights, within any and all portions of the Granted Property, to install and maintain any
and all utility and related, similar and/or incidental public or private service facilities, including, without
limitation, equipment, meters, lines, conduits, cables, ductwork, etc. (collectively"Mility facilities"). (As
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used herein"utility facilities" includes, without limitation, any facilities in any way relating to or intended
or designed for generation, storage, transmission and/or presentation of water, sewer, gas, electricity,
telephone, television, electronic transmissions/presentations, interact, wi-fi, air[heating, ventilation and air
conditioning], refuse, etc.) Concerning utility facilities, Grantor's rights and obligations (as owner of the
Retained Property and with respect to the Granted Property) shall be essentially the, same as Grantor's
rights and obligations concerning support devices, as set forth in clauses (i) through (v) in the paragraph
immediately above.
Grant of Easements for Utility Facilities. Grantor, as the owner of the Retained Property, hereby Grants to
City,as the owner and for the benefit of the Granted Property,and any and all portions thereof and any and
all improvements now or hereafter constructed or maintained thereon ("Granted Property"), rights, as
follows: City shall have rights, within any and all public and/or quasi public portions of the Retained
Property,to install and maintain utility facilities. Concerning utility facilities, City's rights and obligations
(as owner of the Granted Property and with respect to the Retained Property) shall be essentially the same
as Grantor's rights and obligations (as owner of the Retained Property and with respect to the Granted
Property)concerning utility facilities,as set forth in the paragraph immediately above.
Maintenance Costs — Support Devices and Utilitv Facilities. With respect to support devices and utility
facilities as referenced above, the following shall apply: Grantor shall be obligated to maintain, in a safe,
sound and operable condition and at Grantor's cost, support devices and utility facilities located within the
Retained Property and support devices and utility facilities that support the Retained Property or
improvements thereon located within the Granted Property, and City shall be obligated to maintain, in a
safe, sound and operable condition and at City's cost, support devices and utility facilities located within
the Granted Property and utility facilities that support the Granted Property located on the Retained
Property. In the event that Grantor fails to so maintain, City may go upon the Retained Property and
perform maintenance and hold Grantor responsible for all costs reasonably incurred in connection
therewith, and, in the event that City fails to so maintain, Grantor may go upon the Granted Property and
perform maintenance and hold City responsible for all costs reasonably incurred in connection therewith.
Mechanical Room Airspace. The mechanical room airspace, i.e., airspace Lot C Parcel 1, shall be retained
by Grantor as part of the Retained Property,but be subject to the following: The mechanical room airspace
will contain mechanical, electrical and other equipment necessary, expedient or convenient to operate
facilities and equipment located both within the Retained Property and the Granted Property; accordingly,
both Grantor and City shall have access to and reasonable use of said mechanical room airspace, and
facilities therein. City(and Grantor) shall have rights to install, use, operate and/or maintain mechanical,
electrical and other equipment as reasonably necessary, expedient or convenient. Each party shall be
responsible for its own installation and maintenance costs. The parties agree to cooperate with each other
and make reasonable efforts to promote and achieve effective,efficient and proper operations.
Grantor's Covenant to Operate and Maintain. Grantor, as the owner of the Retained Property,
acknowledges that in order for the City to make the commitments to operate the Parking Facilities as
provided in Section(2)of this Grant Deed, the commercial,retail,office,theater,hotel and residential uses
must be designed, operated, and maintained at a high commercial standard; accordingly, Grantor shall
operate and maintain all commercial, retail, office, theater, hotel and residential uses constructed or
installed on the Retained Property in a first class condition and Grantor shall use commercially reasonable
efforts to lease the premises.
Indemnification. Grantor shall indemnify, defend and hold harmless City and City's employees,
contractors, agents, public officials, council members, and invitees from any damage to the Granted
Property or any improvements thereon or any third party claims, costs, fees or suits arising from Grantor's
exercise of any rights,privileges or obligations provided or retained pursuant to the provisions of this Grant
Deed; and, likewise, City shall indemnify, defend and hold harmless Grantor and Grantor's agents and
employees from any damage to the Retained Property or any improvements thereon or any third party
claims, costs, fees or suits arising from City's exercise of any rights, privileges or obligations provided or
granted pursuant to the provisions of this Grant Deed.
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Characteristics of Easement Rights. Easement rights and obligations, as set forth above, shall extend in
perpetuity, be appurtenant to benefitted properties, be binding on the burdened property, enforceable as
easements,covenants running with the land and/or equitable servitudes,and be enforceable by and binding
upon the respective heirs,successors and assigns of Grantor and City.
Grantor:
Palm Springs Promenade,LLC
A California limited liability company
By:
Title:
Dated:
Acceptance and Agreement by Ci[v. The City of Palm Springs, a municipal corporation and charter city,
City named in the foregoing grant, hereby accepts and agrees to said grant, and each and all terms,
covenants,conditions,restrictions,reservations,easements,exceptions and agreements thereof.
City:
City of Palm Springs,
A municipal corporation and charter city,
By:
Title:
Dated:
(NOTARIES ON FOLLOWING PAGE)
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STATE OF CALIFORNIA )
ss
COUNTY OF RIVERSIDE )
On before me, Notary Public,
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 this 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.
(NOTARY SEAL)
SIGNATURE OF NOTARY
STATE OF CALIFORNIA )
ss
COUNTY OF RIVERSIDE )
On before me, Notary Public,
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 this 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.
(NOTARY SEAL)
SIGNATURE OF NOTARY
I s
EXHIBIT "A"
TO GRANT DEED
ENTIRE PROPERTY
(LEGAL DESCRIPTION)
6
EXHIBIT "B"
TO GRANT DEED
GRANTED PROPERTY
(LEGAL DESCRIPTIONS AND DEPICTIONS)
7
EXHIBIT "C"
TO GRANT DEED
RETAINED PROPERTY
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EASEMENT AGREEMENT
This EASEMENT AGREEMENT ("Agreement") is made effective as of the date
of recordation with the Official Records of Riverside County, California, by and between
the City of Palm Springs, a California municipal corporation and charter city ("City"),
and Palm Springs Promenade, LLC, a California limited liability company
("Developer").
RECITALS
A. Prior to recordation of this Agreement and pursuant to a Project Financing
Agreement("PFA")between Developer and City, Developer(i)was the owner of fee title
to the real property described on Exhibit "A" attached hereto ("Entire Property"), (ii)
conveyed to City by recorded grant deed ("Grant Deed") fee title to the real property
described on Exhibit "B" attached hereto ("Granted Property"), and(iii) retained fee title
to the real property described on Exhibit "C" attached hereto ("Retained Property").
(The PFA and recorded Grant Deed are incorporated herein by reference as though set
forth in full and all defined terms therein shall, unless otherwise indicated, have the same
meanings herein.) The conveyance by Developer to City pursuant to the recorded Grant
Deed was specifically made subject to certain terms, covenants, conditions, restrictions,
reservations, easements, exceptions and agreements as set forth therein.
B. The purpose of this Agreement is to set forth certain other terms,
covenants, conditions, restrictions,reservations, easements, exceptions and agreements as
provided herein.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Existing Trash Enclosure on Parcel 11. Developer, its aWhorized agents,
employees, guests, invitees and customers, and Developer's authorized tenants and
subtenants, and their authorized agents, employees, guests, invitees 1 and customers
("Developer Authorized Users") shall have the right and easement to exclusive use of the
existing trash enclosure area (and dumpsters therein), located at surface level within
Parcel 11 described and depicted on Exhibit `B" attached. City shall have access to such
enclosure on commercially reasonable terms, as agreed to by the Developer and City.
Developer shall keep and use such area clean, safe, free from vermin and in compliance
with all laws, and Developer shall ensure that all Developer Authorized Users similarly
comply.
2. Existing Trash Enclosure on Lot C. Developer and Developer Authorized
Users shall have the right and easement to exclusive use of the existing',trash enclosure
area(and dumpsters therein), located at surface level within Lot C described and depicted
on Exhibit "B" attached, upon and subject to the same terms and conditions set forth in
Section 1 above.
3. Satisfaction of Parking Requirements. City acknowledges,and agrees that
the availability of parking within the Parking Facilities and new public streets (i.e., Lots
A through D described and depicted on Exhibit `B") is and shall be deemed to be
6i20i2012Emmmt I
sufficient to satisfy all parking requirements for private improvements and uses
contemplated by the Revitalization Plan; accordingly, no additional parking requirements
or parking fees shall be imposed in connection therewith. Subject to approval by City of
future vertical development applications for private improvements and uses with respect
to Parcels 4, 5 and 7 described and depicted on Exhibit "C", City further acknowledges
and agrees that the availability of parking within the Parking Facilities'',and new public
streets is and shall be deemed sufficient to satisfy all parking requirements for such
vertical development as long as such development is consistent with the Specific Plan for
Museum Market Plaza as adopted by the City Council on December 2, 2009 ("Specific
Plan"); accordingly, no additional parking requirements or parking fees shall be imposed
in connection therewith. Subject to approval by City of future vertical development
applications submitted for private improvements and uses with respect to other areas
within the Specific Plan but outside the Revitalization Plan, City further acknowledges
and agrees that the availability of parking within the Parking Facilities and new public
streets is and shall be deemed sufficient to satisfy all parking requirements for such
vertical development as long as such development is consistent with the Specific Plan as
provided herein; accordingly, no additional parking requirements or parking fees shall be
imposed in connection therewith.
4. Temporary Street Closures for Events. It is acknowledged and agreed that
all new public street entry points into the Project may contain submersible stainless steel
bollards that can be electrically raised, from time to time on a temporary basis, to block
vehicular traffic and accommodate pedestrian only activities and events and functions. In
connection therewith, reasonable steps shall be taken by City to provide reasonable
advance notice to tenants adjacent to new public streets to be affected by any such
temporary closures.
5. Temporary Parking and Landscaping within Parcels 4 5 and 7. Within
Parcels 4 and 7, Developer is temporarily (pending future vertical development) leaving
surface areas as existing parking; and within Parcel 5, Developer is temporarily(pending
future vertical development) installing grass landscaping. Subsequent to completion of
the Revitalization Plan and until future vertical development by Developer, City shall at
its cost operate and maintain temporary parking areas on Parcels 4 and 7, and temporary
landscaping areas on Parcel 5. To perform such operation and maintenance functions,
City shall have temporary easements in gross. Said easements shall, with respect to each
such Parcel, commence upon completion of the Revitalization Plan and continue until
receipt by City from Developer of a notice of termination of easement, which notice shall
be delivered at least one hundred twenty (120) days prior to termination. It is expected
that, with respect to each such Parcel, such notice will not be given until Developer is
ready to commence activities intended to result in the development of vertical
improvements.
6. Public Restrooms. At all times subsequent to completion of the
Revitalization Plan, City shall have the right and obligation to operate and maintain, in a
clean, safe, sanitary and operable condition, public restrooms expected to be constructed
within Parcel 3. In order to exercise such right and satisfy such obligation, City shall
have an easement in gross, in perpetuity, to access, service, operate and maintain such
public restrooms.
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7. Miscellaneous General Provisions.
A. Entire Agreement. Subject to the terms of the Grant Deed and the
PEA and Revitalization Plan, this Agreement contains the entire agreement of the parties
with respect to matters covered herein, and there are no other agreements or
representations, written or oral, other than as contained herein.
B. Cooperation. Each party agrees to and shall do and perform such
other and further acts and properly execute and deliver such other and further documents
as may be reasonably necessary, expedient or convenient to implement the intents and
purposes hereof.
C. Reasonable Approvals. Whenever this Agreement requires or calls
for the approval or consent of any party hereto, such approval shall not be unreasonably
withheld, delayed or conditioned.
D. Binding Arbitration. In the event of any dispute or controversy
arising out of or relating to this Agreement, or the breach or performance of it, the parties
shall reasonably attempt to resolve such dispute or controversy without resort to third
party review or resolution. The parties shall first meet and confer on any such dispute or
controversy. Such meeting(s) shall include any principal of the Developer and, at the
discretion of the City, may include the City Manager and/or the City Council, either as a
whole or through an ad hoe subcommittee designated by the City Council. Upon a
determination by the parties that they are or will be unable to resolve the dispute or
controversy on their own, then the parties shall submit the dispute, controversy or any
remaining unresolved matter to binding arbitration, to be held in the Coachella Valley,
and be conducted pursuant to the Commercial Arbitration Rules of the American
Arbitration Association.
E. Legal Fees. In the event of any dispute, arbitration or litigation
arising out of or relating to this Agreement, or the breach or performance of it, the
prevailing party shall be entitled to recover, in addition to any other appropriate relief,
reasonable legal fees and costs incurred in connection therewith.
F. Binding on Successors. This Agreement shall be binding on the
parties hereto, their heirs, successors and assigns. The terms, provisions and covenants
herein shall be enforceable at law as legal easements and/or covenants running with the
land, and in equity as equitable servitudes.
G. Independent Legal Representation. Each party hereto has, at all
times during the negotiation and execution of this Agreement, beery, represented by
independent legal counsel.
H. Incorporation of Recitals and Exhibits. All recitals herein and all
Exhibits attached hereto are incorporated into and made a part of this Agreement.
I. Captions and Headings. Any captions or headings in this
Agreement are for convenience only, and shall not be used to determine or construe
meanings of substantive language herein.
6/20/2012Ew mmt 3
J. Applicable Law. This Agreement is entered into in California, and
relates to California real property, and shall be determined in accordance with the
laws of the State of California.
K. Venue. In the event of any arbitration or litigation iarising out of or
relating to this Agreement, or the breach or performance of it, any such:arbitration shall
be conducted in the Coachella Valley, and any such litigation shall be filed in the Indio
Branch of the Riverside County Superior Court.
L. Severability. In the event any provisions of this Agreement is
deemed or construed by arbitration or a court of competent jurisdiction to be
unenforceable, the remaining provisions shall nevertheless remain binding and
enforceable to the maximum extent possible.
M. Interpretation. This Agreement and language therein has been
prepared and agreed to by both parties, and any rules of contract interpretation calling for
construction against one party or the other based on drafting, shall be inapplicable.
N. Notices. As used in this Agreement, "notice" includes, but is not
limited to, the communication of notice, request, demand, approval, statement, report,
acceptance, consent, waiver, appointment or other communication required or permitted
hereunder. All notices shall be in writing and shall be considered given i either: (i) when
delivered in person to the recipient named below; or(ii)on the date of delivery shown on
the return receipt, after deposit in the United States mail in a sealed envelope as either
registered or certified mail with return receipt requested, and postage and postal charges
prepaid, and addressed to the recipient named below; or (iii) on the date of delivery
shown in the records of the telegraph company after transmission by (telegraph to the
recipient named below. All notices shall be addressed as follows:
If to City:
City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, California 92262
Attn: City Manager
Telephone: (760) 322-8350
Facsimile: (760) 323-8207
Copy to:
City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, California 92262
Attn: City Attorney
Telephone: (760) 323-8211
Facsimile: (760) 323-8207
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If to Developer:
Palm Springs Promenade, LLC
555 South Sunrise Way, Suite 200
Palm Springs, California 92264
Attn: John Wessman
Telephone: (760) 325-3050
Facsimile: (760) 325-5848
Copy to:
Ealy,Hemphill &Blasdel, LLP
71780 San Jacinto Drive, Suite 1-3
Rancho Mirage, California 92270-5518
Attn: W. Curt Ealy
Telephone: (760)340-0666
Facsimile: (760) 340-4666
Either party may, by notice given at any time, require subsequent notices to be given to
another person or entity, whether a party or an officer or representative of a party, or to a
different address, or both. Notices given before actual receipt of notice,of change shall
not be invalidated by the change
Q. Authority. Each party represents and warrants to the other that
such party has full right, power and authority to sign, execute and' enter into this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
made it effective as of the day and year set forth above.
DEVELOPER: PALM SPRINGS PROMENADE, LLC
A California limited liability company
By:
Title:
Dated:
CITY: CITY OF PALM SPRINGS
A California municipal corporation and charter city
By:
Title:
Dated:
ATTEST:
City Clerk
APPROVED AS
TO LEGAL FORM:
City Attorney
6/20/2012Easemem 5
PRIVATE IMPROVEMENT ESCROW AGREEMENT
AND ESCROW INSTRUCTIONS
This PRIVATE IMPROVEMENT ESCROW AGREEMENT AND ESCROW
INSTRUCTIONS ("Agreement'), dated as of the day of , 2012, is
made and entered into by and between Palm Springs Promenade, LLC, a California
limited liability company ("Developer"), and First American Title Insurance Company,
Inc., a California corporation ("Escrow Holder").
RECITALS
A. Project Financing Agreement. Prior to execution of this Agreement,
Developer and the City of Palm Springs ("City") entered into a Project Financing
Agreement ("PFA"). (The PFA is incorporated herein by reference, and defined terms
therein shall have the same meanings herein.) Pursuant to the PFA, Developer agreed
that funds, in the sum of$32 million, to be paid by the City to Developer as consideration
for the conveyance of certain Public Assets, would be deposited into a Private
Improvement Escrow, and that such funds would then be used by Developer solely for
the creation and refurbishment of Private Improvements (as defined in the PFA).
Pursuant to the PFA, Developer also agreed that prior to the commencement of vertical
construction of Private Improvements, Developer would deposit the additional sum of$2
million into the Private Improvement Escrow, and that, thereafter, Developer would
deposit additional sums as necessary to complete the Private Improvements.
B. Independent Fund Control Agreement. Concurrently with the execution of
this Agreement, Developer and D.W. Johnson Construction, Inc., a California corporation
("IFC Agent"), entered into an Independent Fund Control Agreement for Private
Improvements ("IFC Agreement'). (The IFC Agreement is attached hereto as Exhibit
"A", and defined terms therein shall have the same meanings herein.) Pursuant to the
IFC Agreement, procedures are established for approval and payment of billing
statements from Providers(as defined in the IFC Agreement) of Private Improvements.
C. Purpose of this Agreement. The purpose of this Agreement is to establish
the Private Improvement Escrow, and to set forth instructions to Escrow Holder for
handling receipts and disbursements of funds from time to time deposited therein.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Escrow Holder.
A. Responsibilities. Responsibilities of Escrow Holder shall be as
follows:
(1) Placement and Investment of Excess Funds. Upon receipt,
from time to time, of any funds ("Excess Funds") in excess of $250000 ("Minimum
Amount"), Escrow Holder shall wire transfer such Excess Funds into one or more
2:20:54 PM6/19/2012jwcopsptimagre vii I
accounts (`Bank Accounts") to be opened in the name of Developer with one or more
nationally known and reputable banks (`Banks"), e.g., Rabobank, JP Morgan Chase,
Bank of America, Chase Manhattan, Morgan Stanley, Citibank, etc. As a matter which
shall be of no concern to Escrow Holder, Developer irrevocably agrees, for the benefit of
the City, that all funds within each of such Bank Accounts will be held and used strictly
and only as follows: Such funds will be temporarily invested to generate reasonable
returns, and then, from time to time and as and to the extent needed, be wire transferred
back to Escrow Holder to be used to pay billing statements from Providers of Private
Improvements per Section 1.A.(2) below. Amounts in such Bank Accounts may only be
placed in investment grade securities built around certificates of deposit with principal
guarantees, from issuers with investment grade credit rating quality, limited to time
horizons to fit expected construction scheduling and funding requirements contemplated
by the IFC Agreement. Such investments shall have the following characteristics: (a)
original principal investment; (b) defined maturity date; (c) full protection of original
principal investment; (d) return defined by an underlying measurement or index, i.e., a
specified market, benchmark or economic indicator; (e) a specified date when return is
delivered; and (f) reliance upon issuer payment at settlement.
(2) Payment of Billing Statements from Providers. During the
term of the Private Escrow and until completion of the Private Improvements, Escrow
Holder shall, from time to time, receive funds as provided in Section 1.A.(1) above, and
issue checks to pay billing statements from Providers of Private Improvements in the
manner contemplated by the IFC Agreement.
B. Non-Responsibilities. Escrow Holder shall have no
responsibilities in connection with the accuracy of or any fraud or forgery in connection
with any billing statements that have been marked "Approved by Developer" and
"Approved by IFC Agent"pursuant to the IFC Agreement.
C. Compensation. As compensation for the assumption and execution
of responsibilities as provided above, Escrow Holder shall be entitled to be paid fees as
agreed to by the parties. Such fees shall be reflected by monthly billing statements and
be paid in the same manner as other Provider billing statements as referenced in Section
1.A.(2) above.
D. Release and Indemnification. Absent negligence, fraud or willful
or intentional misconduct on the part of Escrow Holder, (1) Escrow Holder shall have no
liability for compliance with instructions to Escrow Holder as provided herein, (2)
Escrow Holder shall be and is released from any and all claims, liabilities, costs,
damages, etc. (collectively "claims"), arising out of or in any way connected with
compliance with such instructions, and (3) Developer agrees to and shall defend,
indemnify and hold Escrow Holder free and harmless from any and all such claims,
including reasonable attorneys fees and court costs incurred in connection with defending
against same and any other claims, disputes, or liabilities involving third parties.
2:20:54 PM6/19/2012jwcopspriescag=vii 2
E. Independent Contractor. Escrow Holder is, and for all purposes
shall be deemed to be, an independent contractor and not the agent, employee,
representative or officer of Developer, IFC Agent or City.
2. Consent of City. Although not a party to this Agreement, concurrently
with full execution hereof, this Agreement shall be consented to in writing by the City,
and, by providing such consent, the City will be deemed to have agreed that in the event
of any inconsistency between the terms of this Agreement and the PFA, the terms of this
Agreement shall control. Developer and Escrow Holder irrevocably agree that once
consented to by the City, this Agreement may not thereafter be amended, modified or
terminated in any way without obtaining additional written consent of the City, and,
absent such consent, any attempt to so amend, modify or terminate shall be null and void
and of no force or effect whatsoever.
3. Miscellaneous Provisions.
A. Entire Agreement. This Agreement contains the entire agreement
of the parties with respect to matters covered herein, and there are no other agreements or
representations, written or oral, other than as contained herein.
B. Cooperation. Each party agrees to and shall do and perform such
other and further acts and properly execute and deliver such other and further documents
as may be reasonably necessary, expedient or convenient to implement the intents and
purposes hereof.
C. Reasonable Approvals. Whenever this Agreement requires or calls
for the approval or consent of any party hereto, such approval shall not be unreasonably
withheld, delayed, or conditioned.
D. Binding Arbitration. In the event of any dispute or controversy
arising out of or relating to this Agreement, or the breach or performance of it, the parties
shall reasonably attempt to resolve each such dispute or controversy without resort to
third party review or resolution. The parties shall first meet and confer on any such
dispute or controversy. Upon determination that the parties are unable to resolve the
dispute or controversy on their own, the parties shall submit the dispute, controversy, or
any remaining disputed matter to binding arbitration, to be held in the Coachella Valley,
and be conducted pursuant to the Commercial Arbitration Rules of the American
Arbitration Association.
E. Legal Fees. In the event of any dispute, arbitration, or litigation
arising out of or relating to this Agreement, or the breach or performance of it, the
prevailing party shall be entitled to recover, in addition to any other appropriate relief,
reasonable attorneys fees and legal costs incurred in connection therewith.
F. Binding on Successors. This Agreement shall be binding on the
parties hereto, their heirs, successors and assigns.
2:20:54 PM6/19/2012jwcopspriecagzvii 3
G. Independent Legal Representation. Each party hereto has, at all
times during the negotiation and execution of this Agreement, been represented by
independent legal counsel.
H. Incorporation of Recitals and Exhibits. All recitals herein and all
Exhibits attached hereto are incorporated into and made a part of this Agreement.
1. Captions and Headings. Any captions or headings in this
Agreement are for convenience only, and shall not be used to determine or construe
meanings of substantive language herein.
J. Apulicable Law. This Agreement is entered into in California, and
relates to California real property, and shall be determined in accordance with the laws of
the State of California.
K. Venue. In the event of any arbitration or litigation arising out of or
relating to this Agreement, or the breach or performance of it, any such arbitration shall
be conducted in the Coachella Valley, and any such litigation shall be filed in the Indio
Branch of the Riverside County Superior Court.
L. Severability. In the event any provisions of this Agreement is
deemed or construed by arbitration or a court of competent jurisdiction to be
unenforceable, the remaining provisions shall nevertheless remain binding and
enforceable to the maximum extent possible.
M. Interpretation. This Agreement and language herein has been
prepared and agreed to by both parties, and any rules of contract interpretation calling for
construction against one party or the other based on drafting, shall be inapplicable.
N. Notices. As used in this Agreement, "notice" includes, but is not
limited to, the communication of notice, request, demand, approval, statement, report,
acceptance, consent, waiver, appointment or other communication required or permitted
hereunder. All notices shall be in writing and shall be considered given either: (i) when
delivered in person to the recipient named below; or (ii) on the date of delivery shown on
the return receipt, after deposit in the United States mail in a sealed envelope as either
registered or certified mail with return receipt requested, and postage and postal charges
prepaid, and addressed to the recipient named below; (iii) on the date of delivery shown
in the records of the telegraph company after transmission by telegraph to the recipient
named below; (iv) on the date of facsimile transmission (with reasonable verification of
receipt); or (v) on the date of e-mail transmission (with reasonable verification of
receipt). All notices shall be addressed as follows:
2:20:54 PM6/19/2012jwcopspiescagreevii 4
If to DEVELOPER:
Palm Springs Promenade, LLC
555 South Sunrise Way, Suite 200
Palm Springs, California 92264
Attn: John Wessman
Telephone: (760) 325-3050
Facsimile: (760) 325-5848
Copy to:
Ealy, Hemphill &Blasdel, LLP
71905 Highway 111, Suite H
Rancho Mirage, California 92270-4825
Attn: Curt Ealy
Telephone: (760) 340-0666
Facsimile: (760) 340-4666
If to ESCROW HOLDER:
First American Title Company
250 East Palm Canyon Drive
Palm Springs, California 92264
Attn: Deana Perricone, Escrow Officer
Telephone: (760) 318-7170
Facsimile: (866) 623-4186
If to CITY:
City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, California 92262
Attn: City Manager
Telephone: (760) 322-8350
Facsimile: (760) 323-8207
Copy to:
City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, California 92262
Attn: City Attorney
Telephone: (760) 323-8211
Facsimile: (760) 323-8207
Any person or entity listed above may, by notice given at any time, require subsequent
notices to be given to another person or entity, whether a party or an officer or
representative of a party, or to a different address, or both. Notices given before actual
receipt of notice of change shall not be invalidated by the change.
2:20:54 PM6/19/2012jwcopsprie cagreevii 5
O. Authority. Each party represents and warrants to the other that
such party and the person signing for such party has full right, power 'and authority to
sign, execute and enter into this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and made it
effective as of the day and year set forth above.
DEVELOPER: PALM SPRINGS PROMENADE, LLC
A California limited liability company
By:
Title:
Dated:
ESCROW HOLDER: FIRST AMERICAN TITLE INSURANCE COMPANY,
A California corporation,
By:
Title:
Dated:
CONSENT OF CITY:
CITY: CITY OF PALM SPRINGS
A California municipal corporation and charter city
By:
Title:
Dated:
2:20:54 PM6/19/2012jwcopsprie cageevii 6
INDEPENDENT FUND CONTROL AGREEMENT
FOR PUBLIC IMPROVEMENTS
This INDEPENDENT FUND CONTROL AGREEMENT FOR PUBLIC
IMPROVEMENTS ("Agreement"), dated as of the day of 2012, is
made and entered into by and between Palm Springs Promenade, LLC, a California
limited liability company ("Developer"), and the City of Palm Springs, a California
municipal corporation and charter City ("City"), and D.W. Johnson Construction, Inc., a
California corporation("IFC Agent").
RECITALS
A. Project Financing Agreement. Prior to execution of this Agreement,
Developer and the City of Palm Springs ("City") entered into a Project Financing
Agreement ("PFA"). (The PFA is incorporated herein by reference, and defined terms
therein shall have the same meanings herein.) Pursuant to the PFA, Developer and City
agreed that the total cost of creating and refurbishing the Public Improvements is
estimated at$I1 million and such amount would be deposited into a Public Improvement
Escrow, and that such funds would be applied, from time to time, as necessary, towards
costs of creation and refurbishment of Public Improvements (as defined in the PFA).
Pursuant to the PFA, Developer also agreed that Developer would pay any costs of
creation and refurbishment of Public Improvements in excess of$11 million.
B. Public Improvement Escrow Agreement. Concurrently with the execution
of this Agreement, Developer, City, and First American Title Company ("Escrow
Holder") entered into a Public Improvement Escrow Agreement and Escrow Instructions
("Public Improvement Escrow Agreement"). (The Public Improvement Escrow
Agreement is attached hereto as Exhibit "A", and defined terms therein shall have the
same meanings herein.) Pursuant to the Public Improvement Escrow Agreement,
procedures and instructions are set forth for handling, by Escrow Holder,; of receipts and
disbursements of funds to and from the Public Improvement Escrow.
C. Purpose of this Agreement. The purpose of this Agreement is to set forth
procedures for reviewing and approving billing statements and making payments, from
the Public Improvement Escrow, for Public Improvement expenses for, and to Providers
(defined below) involved in, the creation and/or refurbishment of Public Improvements.
The Parties acknowledge that the Public Improvements will be designed, installed,
inspected, approved, and accepted as public improvements consistent with the provisions
of the City's Municipal Code for public street improvements including without limitation
the review and approval of the design and plans and specifications, inspections, approval,
and acceptance. A portion or all of the duties of City provided in this Agreement may be
performed by the City Manager, the City Manager's designee, or the City's
Representative retained by the City Manager or the City Council.
6/20/2012 IFC Public Impmvements 1
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. IFC Agent.
A. Responsibilities. Responsibilities of IFC Agent shall be as
follows:
(1) Review Billing Statements. IFC Agent shall expeditiously
(within 5 days of receipt) review billing statements (and supporting documentation) for
Public Improvement expenses from Providers, as and when approved by and received
from Developer, in an effort to confirm and verify that such billing statements are for (a)
work done in connection with creation and/or refurbishment of Public Improvements,
and/or(b) materials, supplies, and/or equipment delivered to the Project site and used (or
to be used) in connection with creation and/or refurbishment of Public Improvements
consistent with the approved Budget and plans and specification ', for the Public
Improvements.
(2) Provide Written Approvals. Subsequent to such review,
IFC Agent shall expeditiously (within 10 days of receipt) provide written approvals
and/or disapprovals (in whole or in part and with reasonable explanations of and required
corrections for any disapprovals) of such billing statements in the manner described in
Section 3.B.(3)below.
B. Non-Responsibilities. Except as otherwise expressly provided in
this Agreement, IFC Agent shall have no responsibilities in connection',with any of the
following: (i) the propriety, adequacy, accuracy or completeness of architectural designs,
improvement plans, specifications, working drawings or agreements between Developer
and Providers, (ii) proper or improper (defective) design, construction or installation, (iii)
compliance or non-compliance with applicable building codes, laws, statutes, ordinances
or regulations, or (iv) fraud or forgery in connection with billing statements (or
supporting documentation).
C. Compensation. As compensation for the assumption and execution
of responsibilities as provided above, IFC Agent shall be entitled to be paid fees as set
forth on Exhibit `B" attached hereto. Such fees shall be reflected by monthly billing
statements and be paid in the same manner as other billing statements as provided herein.
D. Release and Indemnification. Absent negligence,',fraud, or willful
or intentional misconduct on the part of IFC Agent, (1) IFC Agent shall',have no liability
for compliance with covenants and agreements of IFC Agent as provided herein, (2) IFC
Agent shall be and is released from any and all claims, liabilities, costs, damages, etc.
(collectively"claims"), arising out of or in any way connected with compliance with such
covenants and agreements, and (3) Developer and City agree to and shall defend,
indemnify, and hold IFC Agent free and harmless from any and all such claims, including
reasonable attorneys fees and court costs incurred in connection with defending against
same and any other claims, disputes, or liabilities involving third parties.
E. Access to Books and Records. At all times prior to completion of
the Public Improvements, IFC Agent shall be entitled to reasonably request, and upon
6/20/2012 LFC Public Improvements 2
reasonable request shall be provided, with copies of books and records relevant to Public
Improvement expenses and all payments made in connection therewith, including,
without limitation, disbursement sheets, billing statements, vouchers, lien releases,
progress payments, cleared checks, balances in the Public Improvement Escrow Account
and Brokerage Accounts, etc. IFC Agent shall have the right to assume that all such
books and records are correct and accurate, and to rely on same, and IFC Agent shall not
be liable for any error or inaccuracy with respect to same. IFC Agent agrees to keep
copies of documents, as appropriate, as well as its own independent books and records
regarding matters referenced herein.
F. Access to Project Site. At all times prior to completion of the
Public Improvements, IFC Agent shall be entitled to visit and inspect the Project site and
Public Improvements being created and/or refurbished thereon.
G. Independent Contractor. IFC Agent is, and for all purposes shall
be deemed to be, an independent contractor and not the agent, employee, representative
or officer of any person or entity whatsoever. The responsibilities of IFC Agent shall be
limited to those set forth above, and IFC Agent shall not work (and shall not be deemed
to be working or work) under the direction and supervision or by the authority of
Developer, Escrow Holder, City or any other person or entity whatsoever.
2. Consent of Parties. Developer, City, and IFC Agent irrevocably agree that
this Agreement may not thereafter be amended, modified or terminated in any way
without obtaining the consent of the Parties, and, absent such consent, any attempt to so
amend, modify, or terminate shall be null and void and of no force or effect whatsoever.
3. Payment Processing.
A. Public Improvement Expenses. Any and all costs and expenses
reasonably incurred in connection with designing, obtaining entitlements for and
constructing Public Improvements shall be payable through and by release of funds from
the Public Improvement Escrow. Such Public Improvement expenses shall include,
without limitation, all hard and soft and direct and indirect costs, and all amounts
reasonably payable to architects, engineers, planners, designers, contractors,
subcontractors, material and equipment suppliers, IFC Agent and other parties, persons
and/or entities (collectively"Providers") involved in creation and/or refurbishment of the
Public Improvements.
B. Billing Statements. Processing and payment of billing statements
from Providers shall be handled as follows:
(1) Delivery to Developer. All Providers shall initially deliver
billing statements (and appropriate supporting documents) to Developer. (It is
anticipated that billing statements will normally be delivered to Developer monthly on or
about the 25th day of each month, and be processed for payment by the 10`b day of the
following month.)
6/20/2012 IFC Public Improvements 3
(2) Developer Review. Developer shall expeditiously review
and consider each such billing statement and, upon approval of same (as is or after and
with requested changes and/or corrections), Developer shall write "Approved by
Developer", and sign and date such approval, on the billing statement, and forward a
copy of same (with supporting documentation), via facsimile or e-mail, to the IFC Agent
with a copy to the City's Representative. (Note: If appropriate, Developer shall also
indicate on the billing statement whether payment should be made by joint check and, if
so, the names of each and all of the joint payees.) It shall be the responsibility of
Developer to at all times ensure that funds sufficient to pay any approved billing
statements are on deposit in the Public Improvement Escrow Account.
(3) IFC Agent Review. IFC Agent shall expeditiously review
and consider each such billing statement received from Developer and, upon approval of
same(as is or after and with reasonably requested changes and/or corrections), IFC Agent
shall write "Approved by IFC Agent", and sign and date such approval, on the copy of
the billing statement, and forward a copy of same (without supporting documents), via
facsimile or e-mail, to the Escrow Holder, and to Developer.
(5) Issuance of Checks. The Escrow Holder shall receive each
such billing statement from IFC Agent and prepare checks, drawn on funds in the Public
Improvement Escrow Account, in accordance with instructions received from Developer
and/or IFC Agent as provided above. Upon preparation, such checks shall be hand
delivered to or picked up by Developer (with copies sent via facsimile or PDF e-mail to
IFC Agent).
(6) Delivery to Providers. Upon receipt of such checks,
Developer shall make arrangements to have them delivered to or picked up by Providers
as applicable and appropriate.
C. Completion. The foregoing arrangements with respect to
processing and payment of billing statements shall be continued until completion of all
Public Improvements and acceptance of the Public Improvements by the City. Upon
such completion, all final bills and billing statements (including any owing to IFC Agent)
shall be paid, the Public Improvement Escrow shall be closed, and funds, if any,
remaining in the Public Improvement Escrow Account shall be disbursed to Developer.
4. Miscellaneous Provisions.
A. Entire Agreement. This Agreement contains the entire agreement
of the parties with respect to matters covered herein, and there are no other agreements or
representations, written or oral, other than as contained herein.
B. Cooperation. Each party agrees to and shall do and perform such
other and further acts and properly execute and deliver such other and further documents
as may be reasonably necessary, expedient or convenient to implement the intents and
purposes hereof.
6/20/2012 IFC Public Improvements 4
C. Reasonable Approvals. Whenever this Agreement requires or calls
for the approval or consent of any party hereto, such approval shall not be unreasonably
withheld, delayed, or conditioned.
D. Binding Arbitration. In the event of any dispute or controversy
arising out of or relating to this Agreement, or the breach or performance of it, or the
approval or disapproval of billing statements as referenced herein, the parties shall
reasonably attempt to resolve each such dispute or controversy without resort to third
party review or resolution. The parties shall first meet and confer on any such dispute or
controversy. Upon determination that the parties are unable to resolve the dispute or
controversy on their own, the parties shall submit the dispute, controversy, or any
remaining disputed matter to binding arbitration, to be held in the Coachella Valley, and
be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration
Association.
E. Legal Fees. In the event of any dispute, arbitration, or litigation
arising out of or relating to this Agreement, or the breach or performance of it, the
prevailing party shall be entitled to recover, in addition to any other appropriate relief,
reasonable attorneys fees and legal costs incurred in connection therewith.
F. Binding on Successors. This Agreement shall be binding on the
parties hereto, their heirs, successors and assigns.
G. Independent Legal Representation. Each party hereto has, at all
times during the negotiation and execution of this Agreement, been represented by
independent legal counsel.
H. Incorporation of Recitals and Exhibits. All recitals herein and all
Exhibits attached hereto are incorporated into and made a part of this Agreement.
I. Captions and Headings. Any captions or headings in this
Agreement are for convenience only, and shall not be used to determine or construe
meanings of substantive language herein.
J. Applicable Law. This Agreement is entered into in California, and
relates to California real property, and shall be determined in accordance with the laws of
the State of California.
K. Venue. In the event of any arbitration or litigation arising out of or
relating to this Agreement, or the breach or performance of it, any such', arbitration shall
be conducted in the Coachella Valley, and any such litigation shall be filed in the Indio
Branch of the Riverside County Superior Court.
L. Severability. In the event any provisions of this Agreement is
deemed or construed by arbitration or a court of competent jurisdiction to be
unenforceable, the remaining provisions shall nevertheless remain binding and
enforceable to the maximum extent possible.
6/20/20121FC Public bnprovements 5
M. Interpretation. This Agreement and language herein has been
prepared and agreed to by both parties, and any rules of contract interpretation calling for
construction against one party or the other based on drafting, shall be inapplicable.
N. Notices. As used in this Agreement, "notice" includes, but is not
limited to, the communication of notice, request, demand, approval, statement, report,
acceptance, consent, waiver, appointment or other communication required or permitted
hereunder. All notices shall be in writing and shall be considered given either: (i) when
delivered in person to the recipient named below; or(ii) on the date of delivery shown on
the return receipt, after deposit in the United States mail in a sealed envelope as either
registered or certified mail with return receipt requested, and postage and postal charges
prepaid, and addressed to the recipient named below; (iii) on the date of delivery shown
in the records of the telegraph company after transmission by telegraph to the recipient
named below; (iv) on the date of facsimile transmission (with reasonable verification of
receipt); or (v) on the date of e-mail transmission (with reasonable verification of
receipt). All notices shall be addressed as follows:
If to DEVELOPER:
Palm Springs Promenade, LLC
555 South Sunrise Way, Suite 200
Palm Springs, California 92264
Attn: John Wessman
Telephone: (760) 325-3050
Facsimile: (760) 325-5848
Copy to:
Ealy, Hemphill &Blasdel, LLP
71905 Highway 111, Suite H
Rancho Mirage, California 92270-4825
Attn: Curt Ealy
Telephone: (760) 340-0666
Facsimile: (760) 340-4666
If to IFC Agent:
D. W. Johnson, Inc.
1445 N. Sunrise Way, Suite 203
Palm Springs, California 92262
Attn: Dave Johnson, President
Telephone: (760) 416-1144
Facsimile: (760)416-1124
If to CITY:
City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, California 92262
Attn: City Manager
Telephone: (760) 322-8350
Facsimile: (760) 323-8207
6/20/2012 IFC Public Improvements 6
Copy to:
City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, California 92262
Attn: City Attorney
Telephone: (760) 323-8211
Facsimile: (760) 323-8207
Any person or entity listed above may, by notice given at any time, require subsequent
notices to be given to another person or entity, whether a party or an officer or
representative of a party, or to a different address, or both. Notices given before actual
receipt of notice of change shall not be invalidated by the change.
O. Authority. Each party represents and warrants to the other that
such party and the person signing for such party has full right, power and authority to
sign, execute and enter into this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
made it effective as of the day and year set forth above.
DEVELOPER: PALM SPRINGS PROMENADE, LLC
A California limited liability company
By:
Title:
Dated:
IFC AGENT: D.W. JOHNSON CONSTRUCTION, INC.
A California corporation,
By:
Title:
Dated:
CITY: CITY OF PALM SPRINGS
A California municipal corporation and charter city
By:
Title:
Dated:
6/20/2012 IFC Public Improvements 7
PUBLIC IMPROVEMENT ESCROW AGREEMENT
AND ESCROW INSTRUCTIONS
This PUBLIC IMPROVEMENT ESCROW AGREEMENT AND ESCROW
INSTRUCTIONS (`Agreement"), dated as of the day of 2012, is
made and entered into by and between Palm Springs Promenade, LLC, a California
limited liability company(`Developer"), the City of Palm Springs, a California municipal
corporation and charter city ("City"), and First American Title Insurance Company, Inc.,
a California corporation(`Escrow Holder").
RECITALS
A. Project Financing Agreement. Prior to execution of this Agreement,
Developer and the City of Palm Springs (`City") entered into a Project Financing
Agreement ("PFA"). (The PFA is incorporated herein by reference, and defined terms
therein shall have the same meanings herein.) Pursuant to the PFA, Developer and City
agreed that the total estimated cost of creating and refurbishing the Public Improvements
at $11 million and such amount would be deposited into a Public Improvement Escrow,
and that such funds would be applied, from time to time as necessary towards costs of
creation and refurbishment of Public Improvements (as defined in the PFA). Pursuant to
the PFA, Developer also agreed that Developer would pay any costs of creation and
refurbishment of Public Improvements in excess of$11 million.
B. Independent Fund Control Agreement. Concurrently with the execution of
this Agreement, Developer, City, and D.W. Johnson Construction, Inc., a California
corporation ("IFC Agent"), entered into an Independent Fund Control Agreement for
Public Improvements ("IFC Agreement"). (The IFC Agreement is attached hereto as
Exhibit"A", and defined terms therein shall have the same meanings herein.) Pursuant to
the IFC Agreement, procedures are established for approval and payment of billing
statements from Providers (as defined in the IFC Agreement) of Public Improvements.
C. Purpose of this Agreement. The purpose of this Agreement is to establish
the Public Improvement Escrow, and to set forth instructions to Escrow Holder for
handling receipts and disbursements of funds from time to time deposited therein.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Escrow Holder.
A. Responsibilities. Responsibilities of Escrow Holder shall be as
follows:
(1) Placement and Investment of Excess Funds Upon receipt,
from time to time, of any funds (`Excess Funds") in excess of $250,000 (`Minimum
Amount"), Escrow Holder shall wire transfer such Excess Funds into one or more
accounts (Bank Accounts") to be opened in the name of Developer with one or more
620/2012dchdmft(e cmw) I
nationally known and reputable banks ("Banks"), e.g., Rabobank, JP Morgan Chase,
Bank of America, Chase Manhattan, Morgan Stanley, Citibank, etc. As'a matter which
shall be of no concern to Escrow Holder, Developer irrevocably agrees, for the benefit of
the City, that all funds within each of such Bank Accounts will be held and used strictly
and only as follows: Such funds will be temporarily invested to generate reasonable
returns, and then, from time to time and as and to the extent needed, be wire transferred
back to Escrow Holder to be used to pay billing statements from Providers of Public
Improvements per Section 1.A.(2)below. Amounts in such Bank Accounts may only be
placed in investment grade securities built around certificates of deposit with principal
guarantees, from issuers with investment grade credit rating quality, limited to time
horizons to fit expected construction scheduling and funding requirements contemplated
by the IFC Agreement. Such investments shall have the following characteristics: (a)
original principal investment; (b) defined maturity date; (c) full protection of original
principal investment; (d) return defined by an underlying measurement or index, i.e., a
specified market, benchmark or economic indicator; (e) a specified date when return is
delivered; and (0 reliance upon issuer payment at settlement.
(2) Payment of Billing Statements from Providers. During the
tern of the Public Escrow and until completion of the Public Improvements, Escrow
Holder shall, from time to time, receive funds as provided in Section 1.A.(1) above, and
issue checks to pay billing statements from Providers of Public Improvements in the
manner contemplated by the IFC Agreement.
B. Non-Responsibilities. Escrow Holder shall have no
responsibilities in connection with the accuracy of or any fraud or forgery in connection
with any billing statements that have been marked "Approved by Developer" and
approved by IFC Agent pursuant to the IFC Agreement.
C. Compensation. As compensation for the assumption and execution
of responsibilities as provided above, Escrow Holder shall be entitled to be paid fees as
agreed to by the parties. Such fees shall be reflected by monthly billing statements and
be paid in the same manner as other Provider billing statements as referenced in Section
1.A.(2) above.
D. Release and Indemnification. Absent negligence, fraud or willful
or intentional misconduct on the part of Escrow Holder, (1) Escrow Holder shall have no
liability for compliance with instructions to Escrow Holder as provided herein, (2)
Escrow Holder shall be and is released from any and all claims, liabilities, costs,
damages, etc. (collectively "claims"), arising out of or in any way connected with
compliance with such instructions, and (3) Developer agrees to and shall defend,
indemnify and hold Escrow Holder free and harmless from any and all such claims,
including reasonable attorneys fees and court costs incurred in connection with defending
against same.
6/20/2012dcndmft(mrow) 2
E. Independent Contractor. Escrow Holder is, and for all purposes
shall be deemed to be, an independent contractor and not the agent, employee,
representative or officer of Developer, IFC Agent or City.
2. Consent of Parties. Developer, City, and Escrow Holder irrevocably agree
that this Agreement may not be amended, modified, or terminated in any way without
obtaining additional written consent of the Parties, and, absent such consent, any attempt
to so amend, modify, or terminate shall be null and void and of no force or effect
whatsoever.
3. Miscellaneous Provisions.
A. Entire Agreement. This Agreement contains the entire agreement
of the parties with respect to matters covered herein, and there are no other agreements or
representations, written or oral, other than as contained herein.
B. Cooperation. Each party agrees to and shall do and perform such
other and further acts and properly execute and deliver such other and further documents
as may be reasonably necessary, expedient or convenient to implement the intents and
purposes hereof.
C. Reasonable Approvals. Whenever this Agreement requires or calls
for the approval or consent of any party hereto, such approval shall not be unreasonably
withheld, delayed, or conditioned.
D. Binding Arbitration. In the event of any dispute or controversy
arising out of or relating to this Agreement, or the breach or performance of it, the parties
shall reasonably attempt to resolve each such dispute or controversy without resort to
third party review or resolution. The parties shall first meet and confer on any such
dispute or controversy. Upon determination that the parties are unable to resolve the
dispute or controversy on their own, the parties shall submit the dispute, controversy, or
any remaining disputed matter to binding arbitration, to be held in the Coachella Valley,
and be conducted pursuant to the Commercial Arbitration Rules of the American
Arbitration Association.
E. Legal Fees. In the event of any dispute, arbitration, or litigation
arising out of or relating to this Agreement, or the breach or performance of it, the
prevailing party shall be entitled to recover, in addition to any other appropriate relief,
reasonable attorneys fees and legal costs incurred in connection therewith.
F. Binding on Successors. This Agreement shall be binding on the
parties hereto, their heirs, successors and assigns.
G. Independent Legal Representation. Each party hereto has, at all
times during the negotiation and execution of this Agreement, been represented by
independent legal counsel.
6/20/2012dchdmft(escrow) 3
H. Incorporation of Recitals and Exhibits. All recitals herein and all
Exhibits attached hereto are incorporated into and made a part of this Agreement.
I. Captions and Headings. Any captions or headings in this
Agreement are for convenience only, and shall not be used to determine or construe
meanings of substantive language herein.
J. Applicable Law. This Agreement is entered into in California, and
relates to California real property, and shall be determined in accordance with the laws of
the State of California.
K. Venue. In the event of any arbitration or litigation arising out of or
relating to this Agreement, or the breach or performance of it, any such arbitration shall
be conducted in the Coachella Valley, and any such litigation shall be filed in the Indio
Branch of the Riverside County Superior Court.
L. Severability. In the event any provisions of this Agreement is
deemed or construed by arbitration or a court of competent jurisdiction to be
unenforceable, the remaining provisions shall nevertheless remain binding and
enforceable to the maximum extent possible.
M. Interpretation. This Agreement and language herein has been
prepared and agreed to by both parties, and any rules of contract interpretation calling for
construction against one party or the other based on drafting, shall be inapplicable.
N. Notices. As used in this Agreement, "notice" includes, but is not
limited to, the communication of notice, request, demand, approval, statement, report,
acceptance, consent, waiver, appointment or other communication required or permitted
hereunder. All notices shall be in writing and shall be considered given either: (i) when
delivered in person to the recipient named below; or(ii) on the date of delivery shown on
the return receipt, after deposit in the United States mail in a sealed envelope as either
registered or certified mail with return receipt requested, and postage and postal charges
prepaid, and addressed to the recipient named below; (iii) on the date of delivery shown
in the records of the telegraph company after transmission by telegraph to the recipient
named below; (iv) on the date of facsimile transmission (with reasonable verification of
receipt); or (v) on the date of e-mail transmission (with reasonable verification of
receipt). All notices shall be addressed as follows:
If to DEVELOPER:
Palm Springs Promenade, LLC
555 South Sunrise Way, Suite 200
Palm Springs, California 92264
Attn: John Wessman
Telephone: (760) 325-3050
Facsimile: (760) 325-5848
6/20/2012dchdmft(e crow) 4
Copy to:
Ealy, Hemphill &Blasdel, LLP
71905 Highway 111, Suite H
Rancho Mirage, California 92270-4825
Attn: Curt Ealy
Telephone: (760) 340-0666
Facsimile: (760)340-4666
If to ESCROW HOLDER:
First American Title Company
250 East Palm Canyon Drive
Palm Springs, California 92264
Attn: Deana Perricone, Escrow Officer
Telephone: (760) 318-7170
Facsimile: (866) 623-4186
If to CITY:
City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, California 92262
Attn: City Manager
Telephone: (760) 322-8350
Facsimile: (760) 323-8207
Copy to:
City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, California 92262
Attn: City Attorney
Telephone: (760) 323-8211
Facsimile: (760) 323-8207
Any person or entity listed above may, by notice given at any time, require subsequent
notices to be given to another person or entity, whether a party or an officer or
representative of a party, or to a different address, or both. Notices given before actual
receipt of notice of change shall not be invalidated by the change.
O. Authority. Each party represents and warrants to the other that
such party and the person signing for such party has full right, power and authority to
sign, execute and enter into this Agreement.
6/20/2012dchdmft(eserow) 5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
made it effective as of the day and year set forth above.
DEVELOPER: PALM SPRINGS PROMENADE, LLC
A California limited liability company
By:
Title:
Dated:
ESCROW HOLDER: FIRST AMERICAN TITLE INSURANCE COMPANY,
A California corporation,
By:
Title:
Dated:
CITY: CITY OF PALM SPRINGS
A California municipal corporation and charter city
By:
Title:
Dated:
6/20/2012dchdmft(e crow) 6
M1
INDEPENDENT FUND CONTROL AGREEMENT'
FOR PRIVATE IMPROVEMENTS
This INDEPENDENT FUND CONTROL AGREEMENT FOR PRIVATE
IMPROVEMENTS ("Agreement'), dated as of the day of 2012, is
made and entered into by and between Palm Springs Promenade, LLC, a California
limited liability company ("Developer"), and D.W. Johnson Construction, Inc., a
California corporation("IFC Agent').
RECITALS
A. Project Financing Agreement. Prior to execution of 'this Agreement,
Developer and the City of Palm Springs ("City") entered into a Project Financing
Agreement ("PFA"). (The PFA is incorporated herein by reference, and defined terms
therein shall have the same meanings herein.) Pursuant to the PFA, Developer agreed
that funds, in the sum of$32 million, to be paid by the City to Developer as consideration
for the conveyance of certain Public Assets, would be deposited into a Private
Improvement Escrow, and that such funds would then be used by Developer solely for
the creation and refurbishment of Private Improvements (as defined in the PFA).
Pursuant to the PFA, Developer also agreed that prior to the commencement of vertical
construction of Private Improvements, Developer would deposit the additional sum of$2
million into the Private Improvement Escrow, and that, thereafter, Developer would
deposit additional sums as necessary to complete the Private Improvements.
B. Private Improvement Escrow Agreement. Concurrently with the
execution of this Agreement, Developer and First American Title Company ("Escrow
Holder") entered into a Private Improvement Escrow Agreement and Escrow Instructions
("Private Improvement Escrow Agreement'). (The Private Improvement Escrow
Agreement is attached hereto as Exhibit "A", and defined terms therein shall have the
same meanings herein.) Pursuant to the Private Improvement Escrow Agreement,
procedures and instructions are set forth for handling, by Escrow Holder, of receipts and
disbursements of funds to and from the Private Improvement Escrow.
C. Purpose of this Agreement. The purpose of this Agreement is to set forth
procedures for reviewing and approving billing statements and making payments, from
the Private Improvement Escrow, for Private Improvement expenses for, and to Providers
(defined below) involved in, the creation and/or refurbishment of Private,Improvements.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. IFC Agent.
A. Responsibilities. Responsibilities of IFC Agent shall be as
follows:
6/19/2012jwcopsifcagre v 1
(1) Review Billing Statements. IFC Agent shall expeditiously
(within 5 days of receipt) review billing statements (and supporting documentation) for
Private Improvement expenses from Providers, as and when approved by and received
from Developer, in an effort to confirm and verify that such billing statements are for (a)
work done in connection with creation and/or refurbishment of Private Improvements,
and/or (b) materials, supplies and/or equipment delivered to the Project site and used (or
to be used)in connection with creation and/or refurbishment of Private Improvements.
(2) Provide Written Approvals. Subsequent to such review,
IFC Agent shall expeditiously (within 10 days of receipt) provide written approvals
and/or disapprovals (in whole or in part and with reasonable explanations of and required
corrections for any disapprovals) of such billing statements in the manner described in
Section 3.B.(3)below.
B. Non-Responsibilities. IFC Agent shall have no responsibilities in
connection with any of the following: (i) the propriety, adequacy, accuracy or
completeness of architectural designs, improvement plans, specifications, working
drawings or agreements between Developer and Providers, (ii) proper or improper
(defective) design, construction or installation, (iii) compliance or non-compliance with
applicable building codes, laws, statutes, ordinances or regulations, or (iv) fraud or
forgery in connection with billing statements (or supporting documentation).
C. Compensation. As compensation for the assumption and execution
of responsibilities as provided above, IFC Agent shall be entitled to be paid fees as set
forth on Exhibit "B" attached hereto. Such fees shall be reflected by monthly billing
statements and be paid in the same manner as other billing statements as provided herein.
D. Release and Indemnification. Absent negligence fraud or willful
or intentional misconduct on the part of IFC Agent, (1) IFC Agent shall have no liability
for compliance with covenants and agreements of IFC Agent as provided herein, (2) IFC
Agent shall be and is released from any and all claims, liabilities, costs, damages, etc.
(collectively"claims"), arising out of or in any way connected with compliance with such
covenants and agreements, and (3) Developer agrees to and shall defend, indemnify and
hold IFC Agent free and harmless from any and all such claims, including reasonable
attorneys fees and court costs incurred in connection with defending against same.
E. Access to Books and Records. At all times prior to completion of
the Private Improvements, IFC Agent shall be entitled to reasonably request, and upon
reasonable request shall be provided, with copies of books and records relevant to Private
Improvement expenses and all payments made in connection therewith, including,
without limitation, disbursement sheets, billing statements, vouches, lien releases,
progress payments, cleared checks, balances in the Private Improvement'Escrow Account
and Brokerage Accounts, etc. IFC Agent shall have the right to assume that all such
books and records are correct and accurate, and to rely on same, and IFC Agent shall not
be liable for any error or inaccuracy with respect to same. IFC Agent agrees to keep
6/19/2012jwcopsifcagre v 2 _
copies of documents, as appropriate, as well as its own independent books and records
regarding matters referenced herein.
F. Access to Project Site. At all times prior to completion of the
Private Improvements, IFC Agent shall be entitled, during normal business hours, to visit
and inspect the Project site and Private Improvements being created and/or refurbished
thereon.
G. Independent Contractor. IFC Agent is, and for all purposes shall
be deemed to be, an independent contractor and not the agent, employee, representative
or officer of any person or entity whatsoever. The responsibilities of IFC Agent shall be
limited to those set forth above, and IFC Agent shall not work (and shall not be deemed
to be working or work) under the direction and supervision or by the authority of
Developer, Escrow Holder, City or any other person or entity whatsoever.
2. Consent of City. Although not a party to this Agreement, concurrently
with full execution hereof, this Agreement shall be consented to in writing by the City,
and, by providing such consent, the City will be deemed to have agreed that in the event
of any inconsistency between the terms of this Agreement and the PFA, the terms of this
Agreement shall control. Developer and IFC Agent irrevocably agree that once
consented to by the City, this Agreement may not thereafter be amended, modified or
terminated in any way without obtaining additional written consent of the City, and,
absent such consent, any attempt to so amend, modify or terminate shall be null and void
and of no force or effect whatsoever.
3. Payment Processing.
A. Private Improvement Expenses. Any and all costs and expenses
reasonably incurred in connection with designing, obtaining entitlements for and
constructing Private Improvements shall be payable through and by release of funds from
the Private Improvement Escrow. Such Private Improvement expenses shall include,
without limitation, all hard and soft and direct and indirect costs, and all amounts
reasonably payable to architects, engineers, planners, designers, contractors,
subcontractors, material and equipment suppliers, IFC Agent and other parties, persons
and/or entities (collectively "Providers") involved in creation and/or refurbishment of the
Private Improvements.
B. Billing Statements. Processing and payment of billing statements
from Providers shall be handled as follows:
(1) Delivery to Developer. All Providers shall initially deliver
billing statements (and appropriate supporting documents) to Developer. (It is
anticipated that billing statements will normally be delivered to Developer monthly on or
about the 251h day of each month, and be processed for payment by the 10`h day of the
following month.)
6/19/2012jwcopsifcagr ev 3
(2) Developer Review. Developer shall expeditiously review
and consider each such billing statement and, upon approval of same (as is or after and
with requested changes and/or corrections), Developer shall write "Approved by
Developer", and sign and date such approval, on the billing statement, and forward a
copy of same (with supporting documentation), via facsimile or e-mail, to IFC Agent.
(Note: If appropriate, Developer shall also indicate on the billing statement whether
payment should be made by joint check and, if so, the names of each and all of the joint
payees.) It shall be the responsibility of Developer to at all times ensure that funds
sufficient to pay any approved billing statements are on deposit in the Private
Improvement Escrow Account.
(3) IFC Agent Review. IFC Agent shall expeditiously review
and consider each such billing statement received from Developer and, upon approval of
same(as is or after and with reasonably requested changes and/or corrections), IFC Agent
shall write "Approved by IFC Agent", and sign and date such approval, on the copy of
the billing statement, and forward a copy of same (without supporting documents), via
facsimile or e-mail, to the Escrow Holder, and to Developer.
(4) Issuance of Checks. The Escrow Holder shall receive each
such billing statement from IFC Agent and prepare checks, drawn on funds in the Private
Improvement Escrow Account, in accordance with instructions received from Developer
and/or IFC Agent as provided above. Upon preparation, such checks shall be hand
delivered to or picked up by Developer (with copies sent via facsimile or PDF e-mail to
IFC Agent).
(5) Delivery to Providers. Upon receipt of such checks,
Developer shall make arrangements to have them delivered to or picked up by Providers
as applicable and appropriate.
C. Completion. The foregoing arrangements with respect to
processing and payment of billing statements shall be continued until completion of all
Private Improvements and sign off by the Building Department of the City. Upon such
completion, all final bills and billing statements (including any owing to IFC Agent) shall
be paid, the Private Improvement Escrow shall be closed, and funds, if any, remaining in
the Private Improvement Escrow Account shall be disbursed to Developer.
4. Miscellaneous Provisions.
A. Entire Agreement. This Agreement contains the entire agreement
of the parties with respect to matters covered herein, and there are no other agreements or
representations,written or oral, other than as contained herein.
B. Coo ero ation. Each party agrees to and shall do and perform such
other and finther acts and properly execute and deliver such other and further documents
as may be reasonably necessary, expedient or convenient to implement the intents and
purposes hereof.
6/19/2012jwcopsifcagr ev 4
C. Reasonable Approvals. Whenever this Agreement requires or calls
for the approval or consent of any party hereto, such approval shall not be unreasonably
withheld, delayed, or conditioned.
D. Binding Arbitration. In the event of any dispute or controversy
arising out of or relating to this Agreement, or the breach or performance of it, or the
approval or disapproval of billing statements as referenced herein, the parties shall
reasonably attempt to resolve each such dispute or controversy without resort to third
party review or resolution. The parties shall first meet and confer on any such dispute or
controversy. Upon determination that the parties are unable to resolve the dispute or
controversy on their own, the parties shall submit the dispute, controversy, or any
remaining disputed matter to binding arbitration, to be held in the Coachella Valley, and
be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration
Association.
E. Legal Fees. In the event of any dispute, arbitration, or litigation
arising out of or relating to this Agreement, or the breach or performance of it, the
prevailing party shall be entitled to recover, in addition to any other appropriate relief,
reasonable attorneys fees and legal costs incurred in connection therewith.
F. Binding on Successors. This Agreement shall be binding on the
parties hereto, their heirs, successors and assigns.
G. Independent Legal Representation. Each party hereto has, at all
times during the negotiation and execution of this Agreement, been represented by
independent legal counsel.
H. Incorporation of Recitals and Exhibits. All recitals herein and all
Exhibits attached hereto are incorporated into and made a part of this Agreement.
I. Captions and Headings. Any captions or headings in this
Agreement are for convenience only, and shall not be used to determine or construe
meanings of substantive language herein.
J. Applicable Law. This Agreement is entered into in California, and
relates to California real property, and shall be determined in accordance with the laws of
the State of California.
K. Venue. In the event of any arbitration or litigation's arising out of or
relating to this Agreement, or the breach or performance of it, any such'arbitration shall
be conducted in the Coachella Valley, and any such litigation shall be filed in the Indio
Branch of the Riverside County Superior Court.
L. Severability. hi the event any provisions of this Agreement is
deemed or construed by arbitration or a court of competent jurisdiction to be
6n9/2012jwcopsifragr 5
unenforceable, the remaining provisions shall nevertheless remain binding and
enforceable to the maximum extent possible.
M. Interpretation. This Agreement and language herein has been
prepared and agreed to by both parties, and any rules of contract interpretation calling for
construction against one party or the other based on drafting, shall be inapplicable.
N. Notices. As used in this Agreement, "notice" includes, but is not
limited to, the communication of notice, request, demand, approval, statement, report,
acceptance, consent, waiver, appointment or other communication required or permitted
hereunder. All notices shall be in writing and shall be considered given either: (i) when
delivered in person to the recipient named below; or (ii) on the date of delivery shown on
the return receipt, after deposit in the United States mail in a sealed envelope as either
registered or certified mail with return receipt requested, and postage and postal charges
prepaid, and addressed to the recipient named below; (iii) on the date of delivery shown
in the records of the telegraph company after transmission by telegraph to the recipient
named below; (iv) on the date of facsimile transmission (with reasonable verification of
receipt); or (v) on the date of e-mail transmission (with reasonable verification of
receipt). All notices shall be addressed as follows:
If to DEVELOPER:
Palm Springs Promenade, LLC
555 South Sunrise Way, Suite 200
Palm Springs, California 92264
Attn: John Wessman
Telephone: (760) 325-3050
Facsimile: (760) 325-5848
Copy to:
Ealy, Hemphill & Blasdel, LLP
71905 Highway 111, Suite H
Rancho Mirage, California 92270-4825
Attn: Curt Ealy
Telephone: (760) 340-0666
Facsimile: (760) 340-4666
If to IFC Agent:
D. W. Johnson, Inc.
Palm Springs, California 922_
Attn: Dave Johnson, President
Telephone: (760) -
Facsimile: (760) -
If to CITY:
City of Palm Springs
6/19Y2012jwwpsifcagreev 6
3200 East Tahquitz Canyon Way
Palm Springs, California 92262
Attn: City Manager
Telephone: (760) 322-8350
Facsimile: (760) -
Copy to:
City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, California 92262
Attn: City Attorney
Telephone: (760) 323-8211
Facsimile: (760) 323-8207
Any person or entity listed above may, by notice given at any time, require subsequent
notices to be given to another person or entity, whether a party or an officer or
representative of a party, or to a different address, or both. Notices given before actual
receipt of notice of change shall not be invalidated by the change.
O. Authority. Each party represents and warrants to the other that
such party and the person signing for such party has full right, power and authority to
sign, execute and enter into this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
made it effective as of the day and year set forth above.
DEVELOPER: PALM SPRINGS PROMENADE, LLC
A California limited liability company
By:
Title:
Dated:
IFC AGENT: D.W. JOHNSON CONSTRUCTION, INC.
A California corporation,
By:
Title:
Dated:
CONSENT OF CITY:
CITY: CITY OF PALM SPRINGS
A California municipal corporation and charter city
By:
Title:
Dated:
6/19/2012jwcopsifcagreev 7
4.A. PROGRESS REPORT AND UPDATE FROM THE CITY COUNCIL
DOWNTOWN REVITALIZATION PROJECT AD HOC SUBCOMMITTEE:
RECOMMENDATION: Direct staff as appropriate.
Item No. 4 . " .
PALM Spy
iy
c
V - N
`� ,, o•t .• City Council Staff Report
C441F0 tat
DATE: June 20, 2012 UNFINISHED BUSINESS
SUBJECT: APPROVE VARIOUS DOCUMENTS REQUIRED PURSUANT TO THE
PROJECT FINANCING AGREEMENT BETWEEN THE CITY AND PALM
SPRINGS PROMENADE, LLC, FOR THE IMPLEMENTATION OF THE
DOWNTOWN REVITALIZATION PLAN
FROM: Douglas Holland, City Attorney
SUMMARY
The Project Financing Agreement for the Downtown Revitalization Plan requires
approval of several documents, including without limitation a grant deed conveying the
public improvements to the City and the independent fund control agreements for public
and private improvements. In addition, minor amendments to the easement, private
improvement escrow, and the public improvement escrow, which are exhibits to the
Project Financing Agreement, are also recommended for Council approval. Approval of
the grant deed is necessary in order to ensure a timely conveyance of the property to
the City concurrently with the closing of the City's bond sale that will fund the City's
obligations under the Project Financing Agreement. The grant deed and the other
documents are still being negotiated between counsel to the developer and this office
and will be submitted to the Council once negotiations are complete.
RECOMMENDATION:
APPROVE GRANT DEED, EASEMENT, INDEPENDENT FUND CONTROL
AGREEMENTS FOR PUBLIC AND PRIVATE IMPROVEMENTS, AND PUBLIC AND
PRIVATE ESCROW AGREEMENTS, FOR THE IMPLEMENTATION OF THE
DOWNTOWN REVITALIZATION PLAN AND PROJECT FINANCING AGREEMENT,
AND AUTHORIZE THE CITY MANAGER AND THE CITY ATTORNEY TO EXECUTE
SUCH DOCUMENTS AND ANY RELATED DOCUMENTS REASONABLY
NECESSARY OR CONVENIENT FOR THE IMPLEMENTATION OF SUCH
DOCUMENTS.
861684.1 ITEM NO.
City Council Staff Report
June 20, 2012— Page 2
Downtown Revitalization Documents
STAFF ANALYSIS:
In order to close the sale of the lease revenue bonds for the financing of the City's
obligations under the Project Financing Agreement, properties within the Downtown
Revitalization Project need to be conveyed to the City as required under the Project
Financing Agreement. The parking structure and the underlying fee are part of the
security for the lease revenue bonds and must be in the City's ownership when the
bonds are sold. The conveyance of these properties to the City will be recorded
concurrently with applicable bond documents related to the lease revenue bonds.
A grant deed from Palm Springs Promenade, LLC., will be the instrument that conveys
the parking structure and related properties to the City. The grant deed is being
prepared in a manner consistent with the intent of the Project Financing Agreement.
The document essentially preserves the conveyed property as a public parking facility
that will be used for free public parking, maintained by the City. The grant deed will
preserve the ability of the Developer to install "support devices" within the parking
structure necessary to provide vertical and lateral support for the private improvements
that will be constructed above the parking structure, subject to several express
conditions including approval of such support devices by the City Council. Additional
provisions preserving both the City's and the Developer's ability to maintain and install
utilities as well as access to the existing mechanical room are also being addressed.
Additional documents contemplated by the Project Financing Agreement will also be
submitted to the City Council within the next few days. These documents include an
easement, the private and public improvement escrow agreements, and the
independent fund control agreements for public and private improvements. We
anticipate that these negotiations will be complete within the next few days. These
documents will be disseminated to the Council and made available to the public once
the negotiations are complete.
FISCAL IMPACT:
The costs associated with the implementation of the Project Financing Agreement will be
borne by the sale of the lease revenue bonds and the General Fund consistent with the
provisioV?.O the Project Financing Agreement.
Douglas Holland, City Attorney David H. Ready, C' ger
Documents to Follow
861684.1