HomeMy WebLinkAbout7/6/2005 - STAFF REPORTS (10) U N
Y CpRIOEIiED i\� k
Oq<1FOR�'�P
Community Redevelopment Agencv Staff Report
`4AI `,
DATE: JUNE 29; 2005 JOINT PUBLIC HEARING
SUBJECT: APPROVAL OF A DISPOSITION AND DEVELOPMENT AGREEMENT
WITH VIP MOTOR CARS, INC., AND PARTNER LAND DEVELOPMENT,
LLC, AN ARKANSAS LIMITED LIABILITY CORPORATION, FOR THE
DISPOSITION OF AN 8-ACRE PARCEL FOR THE PURPOSE OF
EXPANDING AND DEVELOPING A NEW BMW AUTO DEALERSHIP IN
THE CITY OF PALM SPRINGS, MERGED REDEVELOPMENT
PROJECT AREA#1
FROM: David H. Ready, Executive Director
BY: Community & Economic Development Department
SUMMARY:
This DDA sells the Developer, Partner Land Development, LLC, an 8 + acre parcel
adjacent to the current VIP Motor Cars dealership located at 4095 East Palm Canyon
Drive, for the purpose of constructing a new BMW sales and service facility. The
dealership's BMW sales have increased considerably during the period they have
owned the franchise and BMW corporate is insisting they expand their facilities. The
Agency has worked for the past several years with the Bureau of Indian Affairs and the
individual allottee that owns the parcel to effectuate an exchange for the parcel using
another parcel the Agency acquired in Section 14. This DDA sells the parcel to the
Developer for fair market value and creates a schedule under which the Developer must
develop the new auto facility. Partner Land Development, LLC, is an affiliated entity of
VIP Motor Cars, Ltd., the holder of the auto franchises, and FDH Enterprises, Inc., the
owner of the existing dealership property.
RECOMMENDATION: S
COMMUNITY REDEVELOPMENT AGENCY RECOMMENDATION:
1. Adopt Resolution No. , "A RESOLUTION OF THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS,
CALIFORNIA, APPROVING A DISPOSITION AND DEVELOPMENT
AGREEMENT WITH VIP MOTOR CARS, LTD. AND PARTNER LAND
Item No. RA3 .
DEVELOPMENT, LLC FOR THE DISPOSITION OF AN 8 + ACRE PARCEL AT
FAIR MARKET VALUE FOR THE EXPANSION AND DEVELOPMENT OF A
NEW BMW AUTO ADJACENT TO THE EXISTING FACILITY AT 4095 EAST
PALM CANYON DRIVE, MERGED PROJECT AREA #1
CITY COUNCIL RECOMMENDATION:
1. Adopt Resolution No. "A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF PALM SPRINGS, CALIFORNIA CONCURRING WITH THE
COMMUNITY REDEVELOPMENT AGENCY REGARDING THE APPROVAL OF
DISPOSITION AND DEVELOPMENT AGREEMENT WITH VIP MOTOR CARS,
LTD. AND PARTNER LAND DEVELOPMENT, LLC
STAFF ANALYSIS:
FDH Enterprises purchased VIP Motors (Palm Springs Mercedes, Infiniti and BMW) at
the end of 1998 and proceeded to improve the business. The Agency entered a DDA
with the dealership in January, 2000 to rebate back about $1,000,000 over a period of
up to 12 years based on their sales tax performance, as an incentive for them to remain
and expand in Palm Springs. The formula pays them effectively a "sales tax increment"
from redevelopment tax increment over an established base. That DDA was amended
on May 18, 2005.
Three main brands are sold at the location: Mercedes-Benz, BMW, and Infiniti. They
have added Maybach in the Mercedes showroom (Maybach is Mercedes' super-luxury
brand, selling for about $300,000) and may have opportunities to add other brands not
currently in the market, though none of the opportunities are firm at this point.
BMW corporate anticipates that in the next five years VIP's BMW sales will grow
significantly as they introduce a number of new models, including the popular X3 sport
utility vehicle. The dealership anticipates a more conservative growth, but still assumes
a considerable increase of sales within that period of time. They had to identify by the
end of 2004 the location where they'll build a new facility and be in by 2007. They need
adequate land for a building of approximately 20,000-25,000 square feet, plus 20
service bays.
The DDA provides that the expansion of the BMW facility will occur on the adjacent
parcel which is being conveyed to the Developer by this agreement at the appraised
(fair market value) price of $2,760,000. The Agency will acquire the parcel through an
Exchange with the Bureau of Indian Affairs for a 5 acre parcel at the northwest corner of
Sunrise and Tahquitz acquired in July 2004.
As part of the exchange, the sale parcel will be taken out of Indian trust and the
exchange parcel in Section 14 shall be placed back into trust status. The Agency
prepared a Bureau of Land Management survey of the sale parcel, which was required
by the BIA before it could be taken out of trust; the survey has been received and
approved by the BLM.
The Agency also commissioned an Environmental Assessment by the firm of 488
Environmental for the Bureau of Indian Affairs approval process, which led to a finding
of Categorical Exemption under the National Environmental Policy Act by the BIA for the
exchange. Additionally, the City's Department of Planning Services performed an Initial
Study of the DDA under the California Environmental Quality Act (CEQA) and prepared
a Notice of Exemption under Section 15061 (b)(3) of CEQA. The Developer shall be
required to prepare a separate Initial Study, which could lead to a Mitigated Negative
Declaration, for the development of the new auto facility.
FISCAL IMPACT:
The terms of this DDA, under which the Developer pays the fair market value of
$2,760,000 for the parcel, which is the total value of land and cash paid to the allottee,
does not represent a fiscal impact to the Agency. However, the other side of the
transaction, the exchange with the Bureau of Indian Affairs, cost the Agency
approximately $400,000 due to the difference in values between the Agency's appraisal
to acquire the land from the prior fee owner and the BIA's appraisal to determine the
value for the purpose of the exchange. Those funds are in the form of a note due the
City of Palm Springs.
ohn S. ay o d, Director of David H. Ready, Exec�ltivs lector
C unity & onomic Development
Attachments:
1. CRA Resolution
2. City Council Conformance Resolution
3. Disposition and Development Agreement
tanle y R.
NOTICE OF JOINT PUBLIC HEARING
COMMUNITY REDEVELOPMENT AGENCY/CITY COUNCIL
CITY OF PALM SPRINGS
DISPOSITION AND DEVELOPMENT AGREEMENT WITH
V.I.P. MOTOR CARS LTD. AND PARTNER LAND DEVELOPMENT
NOTICE IS HEREBY GIVEN that the Community Redevelopment Agency of the City of Palm
Springs, California ("Agency"), and the City Council of the City of Palm Springs, California, will hold
a joint public hearing on June 29, 2005, at approximately 6:00 p.m. or as soon as possible
thereafter, in the City Council Chamber at City Hall, 3200 E. Tahquitz Canyon Way, Palm Springs,
CA 92262.
The purpose of this hearing is to consider the approval of a Disposition and Development
Agreement with V.I.P. Motor Cars Ltd. and Partner Land Development ("Developer"). To approve
this amendment, the Agency and the City Council are required to make certain findings pursuant to
Health and Safety Code Section 33421.1, 33433 and 33445, and prior to making these findings a
public hearing is held to receive public input on the matter. The nature of the amendment is that
the Agency will acquire a parcel of approximately 7.9 acres immediately to the west of the
Developer's property through a real property exchange with the Bureau of Indian Affairs, and will
resell the property to the Developer for fair market value, which was determined by an MAI
appraisal to be $2,760,000. The Developer proposes to construct a free-standing BMW
automobile dealership on the site, and expand the Mercedes and Infiniti dealerships on the
balance of Developer's current property. The Department of Planning Services has determined
that the sale of the parcel is categorically exempt from CEQA.
The staff report and other supporting documents regarding this matter are available for public
review at City Hall between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday. Please
contact the City Clerk's Department at (760) 323-8204 if you would like to schedule an
appointment to review these documents.
Response to this notice may be made verbally at the Public Hearing and/or in writing before the
hearing. Written comments may be made to the Community Redevelopment Agency of the City of
Palm Springs and City Council by letter (for mail or hand delivery) to:
James Thompson, City Clerk
3200 E. Tahquitz Canyon Way
P.O. Box 2743
Palm Springs, CA 92263
Any challenge of the proposed project in court may be limited to raising only those issues raised at
the public hearing described in this notice, or in written correspondence delivered to the City Clerk
at, or prior, to the public hearing. (Government Code Section 65009(b)(2)).
An opportunity will be given at said hearing for all interested persons to be heard. Questions
regarding this case may be directed to John S. Raymond, Director of Community & -Economic
Development (760) 323-8228.
Si necesita ayuda con esta carta, porfavor Ilame a la Ciudad de Palm Springs y puede hablar con
Nadine Fieger telefono (760) 323-8245.
Yames Thompson, City Clefk
RESOLUTION NO.
OF THE COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, CALIFORNIA,
APPROVING A DISPOSITION AND DEVELOPMENT
AGREEMENT WITH VIP MOTOR CARS, LTD. AND
PARTNER LAND DEVELOPMENT, LLC FOR THE
DISPOSITION OF AN 8 + ACRE PARCEL AT FAIR
MARKET VALUE FOR THE EXPANSION AND
DEVELOPMENT OF A NEW BMW AUTO ADJACENT
TO THE EXISTING FACILITY AT 4095 EAST PALM
CANYON DRIVE, MERGED PROJECT AREA#1
-------------------
WHEREAS, the Community Redevelopment Agency of the City of Palm Springs,
California ("Agency") is constituted under the Community Redevelopment Law
(California Health and Safety Code Section 33000 et. seq.) to carry out the purpose as
the redevelopment in the City of Palm Springs ("the City"); and
WHEREAS, VIP Motor Cars, Ltd. ("Dealer"), FDH Enterprises, Inc. ("Original
Developer") and the Agency entered a Disposition and Development Agreement in
January, 2000 for the Agency to provide financial assistance in their efforts to expand
and upgrade their automobile dealership at 4095 East Palm Canyon Drive, in order to
retain the business in Palm Springs, make it a more profitable facility for the dealer and
the City, and increase the level of employment; and
WHEREAS, expansion of the dealership created additional sales tax revenue for the
City, as well as create additional on-site jobs for documented low and moderate income
households, therefore improving the City's ability to provide services to all its residents,
as well as overall living conditions for low and moderate income households in the City;
and
WHEREAS, Section 33430 of the Community Redevelopment Law allows that an
agency may, "for purposes of redevelopment, sell, lease, for a period not to exceed 99
years, exchange, subdivide, transfer, assign, pledge, encumber by mortgage, deed of
trust, or otherwise, or otherwise dispose of any real or personal property or any interest
in property;" and
WHEREAS, the Agency is acquiring an 8 acre parcel adjacent to the dealership (APN
681 070 016) through an exchange of properties with the Bureau of Indian Affairs, which
will be effectuated through a simultaneous fee-to-trust transfer and trust-to-fee transfer
of the properties; and
WHEREAS, once it acquires the subject property, the Agency proposes to sell the
parcel to an affiliated company of the Dealer, Partner Land Development, LLC,
("Developer") for the appraised fair market price of$2,760,000; and
Community Redevelopment Agency
June 29, 2005
Page 2
WHEREAS, Section 33432 of the Community Redevelopment Law requires that any
such disposition of property shall be conditioned on the redevelopment and use of the
property in conformity with the redevelopment plan; and
WHEREAS, Developer now seeks to further expand and improve the dealership, which
will result in additional public benefits through the acquisition of the property and the
construction of a new BMW facility;
WHEREAS, a Notice of Public Hearing concerning the Disposition and Development
Agreement was published in accordance with applicable law; and
WHEREAS, the Agency has considered the staff report, and all the information,
testimony and evidence provided during the public hearing on June 29, 2005.
NOW, THEREFORE, BE IT RESOLVED by the Community Redevelopment Agency of
the City of Palm Springs as follows:
SECTION 1. The above recitals are true and correct and incorporated herein.
SECTION 2. Pursuant to the California Environmental Quality Act (CEQA), the
Community Redevelopment Agency finds that in connection with
the approval of the DDA, the exchange of parcels is Categorically
Exempt under Section 15061 (b)(3) of CEQA because the
subsequent development project will be required to perform an
Initial Study that will lead to a CEQA action. The exchange was
also determined to be Categorically Exempt under the National
Environmental Policy Act (NEPA) by the Bureau of Indian Affairs.
SECTION 3. The Developer proposes to develop and construct an new BMW
dealership on the 8-acre site. These improvements include a new
building of approximately 35,000 square feet, which shall include:
workshop and support areas; a wash and detail area; service
reception and administration; a parts department; a showroom;
sales department; general offices; personal facilities; and, a service
drive under roof.
SECTION 4. This project further improves a previously blighted corner of Merged
Redevelopment Project Area #1 (formerly #9G) and will further
increase tax increment to the Agency and sales tax collections to
the City.
SECTION 5. The Agency does hereby find and determine as follows:
(a) The dealership property was originally developed in
the 1950's and was occupied by Palm Springs Ford
until the 1970's when it departed; however, while the
1.C'� 17,
,
j
Community Redevelopment Agency
June 29, 2005
Page 3
dealership currently has luxury brand names, the
dealership itself has declined in economic value over
the past two decades due to aging and obsolete
facilities and poor visibility from East Palm Canyon
Driven. In 1998, the current owners acquired VIP
Motor Cars, Ltd. and began negotiating with the
manufacturers regarding the manufacturers'
requirements for the dealership's facilities.
(b) The Original DDA, as amended, further effectuates
the purposes of the Community Redevelopment Law
by reversing or alleviating any serious physical,
social, and economic burden of the Community which
cannot reasonably be expected to be reversed or
alleviated by private enterprise acting alone, in that
the assistance will facilitate the redevelopment and
operation of the automobile dealership by causing the
reconstruction and upgrade of the property, placing
the property in the hands of a first class and
experienced operator, in order to maintain existing
sales tax revenue and attract additional commercial
development within the City and increase the City's
tax base.
(c) This DDA further effectuates the purposes of the
Community Redevelopment Law as it is intended to
eliminate blight and promote the health, safety and
general welfare of the people of Palm Springs by
facilitating a major expansion of the dealership by
acquiring a property the private owner was unable to
acquire on his own.
SECTION 6. The parcel required a Bureau of Land Management ("BLM")
survey prior to the deed being issued by the Bureau of
Indian Affairs to the Agency. Agency prepared the survey,
which was submitted to the Bureau of Land Management for
review and subsequent approval. Concurrently with
obtaining the BLM survey and processing the Environmental
Assessment (the Bureau of Indian Affairs approval process),
the allottee submitted the Bureau of Indian Affairs application
commencing the process of placing the Agency's Parcel
back into trust status to be held in trust for her.
Community Redevelopment Agency
June 29,2005
Page 4
SECTION 7. The proposed project is consistent with the Implementation
Plan for this area, insofar as this project will increase tax
increment and will expand an already-existing successful
business. It will increase the City's commercial sector by
expanding a major retail business in the City, in order to
further capture a portion of the significant sales tax leakage
that occurs in Palm Springs.
SECTION 8. Based on foregoing reasons, this Disposition and
Development Agreement is hereby approved and
incorporated herein by this reference.
SECTION 9. The Executive Director of the Agency, and/or his designee,
is authorized to execute all necessary documents, in a form
approved by the Agency Counsel.
ADOPTED this day of 2005.
AYES:
NOES:
ABSENT:
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
CITY OF PALM SPRINGS, CALIFORNIA
By
Assistant Secretary Chairman
REVIEWED & APPROVED
Community Redevelopment Agency
June 29, 2005
Page 5
RESOLUTION NO.
OF THE CITY COUNCIL OF THE CITY OF PALM
SPRINGS, CALIFORNIA CONCURRING WITH THE
COMMUNITY REDEVELOPMENT AGENCY
REGARDING THE APPROVAL OF DISPOSITION
AND DEVELOPMENT AGREEMENT WITH VIP
MOTOR CARS, LTD. AND PARTNER LAND
DEVELOPMENT, LLC
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Palm Springs
that it concurs with the action of the Community Redevelopment Agency in the matter of
approving a Disposition and Development Agreement with VIP Motor Cars, Ltd. and
Partner Land Development, LLC.
ADOPTED this day of 2005.
AYES:
NOES:
ABSENT:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By
City Clerk City Manager
REVIEWED & APPROVED AS TO FORM
SUMMARY REPORT:
DISPOSITION AND DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE PALM SPRINGS COMMUNITY REDEVELOPMENT AGENCY
AND
VIP MOTOR CARS, INC., AND PARTNER LAND DEVELOPMENT, LLC,
AN ARKANSAS LIMITED LIABILITY CORPORATION
FOR THE DISPOSITION OF AN 8-ACRE PARCEL
FOR THE PURPOSE OF EXPANDING AND DEVELOPING
A NEW BMW AUTO DEALERSHIP
IN
THE CITY OF PALM SPRINGS
MERGED REDEVELOPMENT PROJECT AREA#1
JUNE 2005
INTRODUCTION
Before real property acquired by a Community Redevelopment Agency with tax increment
proceeds may be sold or leased,the transaction must be approved by the Agency Board in
accordance with California Health and Safety Code Section 33433. This Section requires a
"Summary Report", which describes and specifies certain information in regard to the
proposed transaction, be available for public inspection.
DESCRIPTION OF THE PROPOSED AGREEMENT
Site and Interests to be Conveyed
The Site consists of one parcel of land of approximately 7.91 acres. The Site is located
adjacent to the Developer's existing property, approximately 500 feet west of Cherokee
Way on East Palm Canyon Drive in the City of Palm Springs. The Developers of the
Property, Partner Land Development, LLC and V.I.P. Motor Cars, Ltd., are seeking to
acquire the parcel at fair market value to develop a new sales and service facility for BMW.
Proposed Development
The Purchaser is proposing to develop a new BMW facility to house the BMW franchise
located next door, at 4095 East Palm Canyon Drive. The existing BMW facility, once
vacated, will allow the expansion of both the Infiniti and Mercedes Benz franchises as well.
The new BMW franchise facility will consist of a building of approximately 35,000 square
feet, as well as outdoor automobile display and storage facilities adequate to serve the new
facility
Financing
The Developer will privately finance the construction of the new facilities through BMW
Financial Services. No public financing is required for the construction of the new facility.
Agency Responsibilities
The Agency agrees to sell the Developer the 7.91 acres for an aggregate $2,760,000. A
portion of the sale proceeds, approximately$596,000 shall be paid through escrow to the
Indian allottee as the difference in value between the Agency parcel located at Sunrise and
Tahquitz and the 7.91 acres. The rest of the funds shall be retained by the Agency.
Developer Responsibilities
The Developer commits to submitting the development application to the City.of Palm
Springs and developing the project as proposed (and ultimately approved), including the
architectural upgrades, noise buffering, quality landscaping, public improvements, and
other components. Agency's other standard terms and conditions, including non-
f �``'"' V
discrimination and maintenance covenants, and other terms and conditions remain in
Disposition and Development Agreement for Developer.
COST OF AGREEMENT TO THE AGENCY
The Agency shall receive an amount of $2,760,000 from the Developer for the parcel,
which is the price determined by a fair market value for the appraisal. A portion of that
amount shall be paid to the Bureau of Indian Affairs to cover the differential in value of the
exchange parcels.
V.).;_ :rn
2005 DISPOSITION AND DEVELOPMENT AGREEMENT
By and Between
THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM
SPRINGS
and
VIP MOTOR CARS,LTD
[NEW PARCEL]
2005 VIP MOTORS DDA—
NEW PARCEL
n i nm mn i�naoo,na
DRAFT
2005 DISPOSITION AND DEVELOPMENT AGREEMENT
THIS 2005 DISPOSITION AND DEVELOPMENT AGREEMENT is entered into as of
the date executed by the Agency, by and between THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS ("Agency"), and VIP MOTOR CARS, LTD, a
California corporation, wholly owned by VIP MOTOR CARS ACQUISITION, INC., a
California corporation (collectively 'Dealer") and PARTNER LAND DEVELOPMENT, LLC
('Developer"). All attachments and exhibits hereto are incorporated herein by reference.
RECITALS
A. Agency is a public body, corporate and politic, exercising governmental functions
and powers and organized and existing under the Community Redevelopment Law of the State
of California(Health and Safety Code Section 33000, et. sect.).
B. Agency desires to implement the Redevelopment Plan for the Merged
Redevelopment Project Area No. 1 ("Project Area") through the sale of certain real property
within the Project Area to Developer for the construction of the 'Project," as that tern is defined
below. Developer is prepared to redevelop the currently vacant "Site," as that term is defined
below, with automobile dealership facilities.
C. Developer is prepared to redevelop the Site and to lease the site to Dealer in
accordance with the terns and conditions set forth in this Agreement.
Agency, Developer and Dealer agree as follows:
I. (§100) PURPOSE OF THE AGREEMENT.
A. (§101) Purpose of the Agreement.
This Agreement and the Attachments hereto are intended to effectuate the ('Project
Area") by providing for the disposition and development of a portion of the Project Area
designated herein as the "Site" and the development of the 'Project" thereon (as those terms are
defined herein). The development of the Site pursuant to this Agreement, and the fulfillment
generally of this Agreement, are in the vital and best interests of the City of Palm Springs
("City") and the welfare of its residents, and in accordance with the public purposes and
provisions of applicable federal, state and local laws and requirements.
The Agency is acquiring the Site from its current owner, Millie Browne, a member of the
Agua Caliente Band of Cahuilla Indians ("Tribe"). The Agency has entered into a Memorandum
of Understanding to acquire the property through an exchange, but the Memorandum of
Understanding is subject to approval by the Bureau of Indian Affairs. Because of timing
requirements of Millie Browne, this exchange, including the requirement of payment of
additional consideration, must occur before Developer will have completed predevelopment and
obtained permits for the Project.
Developer owns three (3) parcels of real property immediately adjacent to the Site
consisting of acres and referred to herein as the Adjacent Property. The Adjacent Properly
2005 VIP MOTORS DDA
m MI Mn i v na000 na
DRAFT
was the subject of an Owner Participation agreement between the parties dated _ and the
Developer currently operates three (3) automobile dealerships on the Adjacent Property:
Mercedes-Benz, Infinity and BMW. The Adjacent Property has become too small for the
conduct of these uses. The Agency desires to sell the Site to Developer to allow Developer to
develop the eight and seventy-eight hundredths (8.78) acre parcel located at _ East Palm
Canyon Drive with auto dealership and related facilities to be owned and operated by the
Developer or an affiliate of Developer. The plan contemplates the transfer of one of Developer's
existing dealerships from the Adjacent Property, probably the BMW dealership. However,
Developer may elect to operate another franchise on the Site. Moreover, on an interim basis
prior to the implementation of Phase 1 of the Project, as detailed in the Scope of Development
and the Conceptual Plan attached hereto, Developer may use the Site as a parking lot. Phase I
will be developed at the time provided in the Scope of Development. Phase II will be
Subsequently, it is hoped that a second auto dealership will be developed on the Site. Given
uncertainties in the auto industry and dealerships, conditional constraints, both the timing and
practicality of this possibility must be left to the Developer. The remainder of the Site shall be
used for auto storage.
This Agreement is entered into by the Agency, pursuant to its authority under the
Community Redevelopment Law, Health and Safety Code Sections 33000, et seq.; which
authorizes the Agency to make agreements with owners, purchasers and lessees of property in
the Project Area provided that the Agency retain controls and establishes restrictions or
covenants running with the land to ensure that the Site is developed, operated, and used in
conformity with this Agreement and the Redevelopment Plan (see Sections 33380, 33381,
33437, 33439 and 33339).
The Agency desires to accomplish the above-described sale and development of the Site
without providing any financial assistance to the Developer or Dealer that would require the
Agency to share sales tax revenue generated at the Site, as contemplated by Health and Safety
Code Section 33426.7 for auto dealerships relocating within the same market area. Accordingly,
to avoid the application of Health and Safety Code Section 33426.7, the Developer's payment to
the Agency for the Site shall be sufficient to fully cover the Agency's costs related to this
Agreement. The Developer shall also be required to pay for any necessary street improvements
and signage. Based on an analysis performed by its financial consultant, the Agency believes
that a purchase price equivalent to the appraised value of Two Million Seven Hundred Sixty
Thousand Dollars ($2,760,000) will be adequate to fund all of the Agency's costs.
II. (§200) DEFINITIONS.
The following terns as used in this Agreement shall have the meanings given unless
expressly provided to the contrary:
A. (§201) Agreement.
The tern "Agreement" shall mean this entire Disposition and Development Agreement,
including all attachments, which attachments are a part hereof and incorporated herein in their
entirety, and all other documents incorporated herein by reference.
2 2005 VIP MOTORS DDA
n I nni/nn 11/IAQQI nd
DRAFT
B. (§ 202) BIA.
The term "BIA" shall mean "Bureau of Indian Affairs."
C. (§ 203)Browne Transaction.
The term `Browne Transaction" shall refer to the acquisition of the Browne Parcel from
Millie Browne through a transaction which will be overseen by the BIA. The Browne
Transaction must close concurrent with the Closing of this Escrow. Terris such as Browne
Closing and Browne Purchase Price shall generally have the same meaning as provided for those
terns herein but shall refer to the Browne Transaction by which the Agency acquires the Site.
D. (§204) Certificate of Completion.
The tern "Certificate of Completion" shall mean that document prepared in accordance
with Section 513 of this Agreement, in the form attached as Attachment No. 6, which shall
evidence that the construction and development of the improvements required by this Agreement
have been satisfactorily completed.
E. (§205) Cam.
The term "City" shall mean the City of Palm Springs, a municipal corporation.
F. (§206) Closing.
The tern "Closing" shall mean the closing of the Escrow by the Escrow Agent's
distributing the funds and documents received through Escrow to the party entitled thereto as
provided herein, which closing shall occur on or before the date established in the Schedule of
Performance.
G. (§207) Covenants, Conditions and Restrictions.
The tenn "CC&Rs" or "Declaration of Covenants, Conditions and Restrictions" shall
mean that Declaration of Covenants, Conditions and Restrictions running with the land and
providing for the proper maintenance of the facilities and improvements and marketing of the
automobile dealership facilities. Prior to the Closing, Developer shall execute and record the
CC&Rs, in the form attached hereto as Attachment No. 7, as further described in Section 601.
H. (§208) Days.
The tern "days" shall mean calendar days and the statement of any time period herein
shall be calendar days, and not working days, unless otherwise specified.
I. (§209) Deed.
The tern "Deed" shall mean that Grant Deed conveying the Site to Developer, which
Deed shall be in the form attached hereto as Attachment No. 5.
3 2005 VIP MOTORS DDA
n i nm/nn I v nnool na
DRAFT
J. (§210) Effective Date.
The Effective Date of this Agreement shall occur on the date this Agreement is executed
on behalf of Agency after public hearing and approval by the Agency.
K. (§211) Enforced Delay.
The tern "Enforced Delay" shall mean any delay described in Section 803 caused
without fault and beyond the reasonable control of a party, which delay shall justify an extension
of time to perform as provided in Section 803.
L. (§212) Escrow.
The term "Escrow" shall mean the Escrow established pursuant to this Agreement for the
conveyance of the Site from Agency to Developer.
M. (§213) Escrow Agent.
The tern "Escrow Agent" shall mean Chicago Title, located at 560 E. Hospitality Lane,
San Bernardino, California 92408, and empowered hereunder to act as the Escrow Agent for this
transaction.
N. (§214) Project.
The term "Project" shall mean all of the improvements required to be constructed by
Developer on the Site pursuant to this Agreement, including, but not limited to, construction of
buildings, glass and concrete work, landscaping, constriction of parking areas, and related
improvements. The Project is more particularly described in the Scope of Development,
attached hereto as Attaclnnent No. 4.
O. (§215) Redevelopment Plan.
The term "Redevelopment Plan" shall mean the Amended and Restated Redevelopment
Plan for the Project Area in the City of Palm Springs, as adopted by Ordinance No. of
the Agency's Board on and as such Redevelopment Plan has been amended
from time to time. Agency hereby warrants and represents that the Redevelopment Plan was
validly adopted and is in full force and effect, that the applicable limitations period for
challenging the validity of the Redevelopment Plan has expired and that the proposed Project is
in accordance with and permissible under, the Redevelopment Plan. A copy of the
Redevelopment Plan is on file in the office of the City Clerk of the City, located at 3200
Tahquitz Canyon, Palm Springs, California 92262. The Redevelopment Plan is incorporated
herein by reference and made a part hereof as though fully set forth herein.
4 2005 VIP MOTORS DDA
n i nmmn i o na000 nn
DRAFT
P. (§ 216) Purchase Price.
The term 'Purchase Price" shall mean that amount agreed upon by the parties as the
payment by Developer to Agency for the purchase of the Site, which amount shall be Two
Million Seven Hundred Sixty Thousand Dollars ($2,760,000).
Q. (§217) Redevelopment Project Area.
The term 'Redevelopment Project Area" shall mean the Amended and Restated Merged
Redevelopment Project No. 1, which is located in the City of Palm Springs, California. The
exact boundaries of the Redevelopment Project Area are specifically described in the
Redevelopment Plan.
R. (§218) Schedule of Performance.
The term "Schedule of Performance" shall mean that certain Schedule of Performance
attached hereto as Attachment No. 3.
S. (§219) Site and Site Map.
The Project shall be located upon that real property, hereinafter referred to as the "Site,"
consisting of approximately eight (8) contiguous acres of land in the City of Palm Springs, as
generally shown in the "Site Map" attached hereto as Attachment No. 1. The Site is legally
described in the "Legal Description" attached hereto as Attachment No. 2. The exact
boundaries and area of the Site shall be determined by a survey prior to the conveyance of title to
the Developer. The Project Phases are shown on the Site Map.
T. (§220) Title.
The term "Title" shall mean the fee interest in the Site conveyed to Developer.
U. (§221) Title Company.
The tern "Title Company" shall mean Chicago Title, located at 560 E. Hospitality Lane,
San Bernardino, California 92408, empowered hereunder to act as the Title Company for this
transition. The title officer shall be Kelly McDole.
V. (222) Phases.
The term 'Project Phases" or 'Phases" refers to the phases of development of the Project
as described in the Scope of Development.
W. (223) Scope of Development.
The term "Scope of Development' shall mean that certain Scope of Development
attached hereto as Attachment No. 4.
X. (225) Tribe
5 2005 VIP MOTORS DDA
n i nni Inn i o IIAQQ9 na
DRAFT
The tern "Tribe" shall mean the Agua Caliente Band of Cahuilla Indians.
III. (§ 300) PARTIES TO THE AGREEMENT.
A. (§301) Agency.
Agency is a public body, corporate and politic, exercising governmental functions and
powers, and organized and existing under the Community Redevelopment Law of the State of
California (Health and Safety Code Sections 33000, et seq.). The office of Agency is located at
3200 Tahquitz Canyon, Palm Springs, California 92262. The term "Agency," as used in this
Agreement, includes the Community Redevelopment Agency of the City of Palm Springs and
any assignee of, or successor to, its rights, powers and responsibilities.
B. (§302) Developer and Dealer.
1. Identification.
a. Developer. Developer is PARTNER LAND DEVELOPMENT,
LLC, an Arkansas corporation. The principal office of Developer for the purposes of this
Agreement is 11300 Rodney Parham Road, Suite 300, Little Rock, Arkansas 72212. Developer
warrants and represents to Agency that Developer is duly qualified to do business in good
standing under the laws of the State of California and has all requisite power and authority to
carry out Developer's business as now and whenever conducted and to enter into and perform
Developer's obligations under this Agreement.
Except as may be expressly provided hereinbelow, all of the terms, covenants and
conditions of this Agreement shall be binding on, and shall inure to the benefit of, Developer and
the permitted successors, assigns and nominees of Developer. Wherever the term 'Developer" is
used herein, such term shall include any permitted successors and assigns of Developer as herein
provided.
b. Dealer. Dealer is VIP MOTOR CARS, LTD, a California
corporation, wholly owned by VIP MOTOR CARS ACQUISITION, INC., a California
corporation. The principal office of Dealer for the purposes of this Agreement is 11300 Rodney
Parham Road, Suite 300, Little Rock, Arkansas 72212. Dealer warrants and represents to
Agency that Dealer is duly qualified to do business in good standing under the laws of the State
of California and has all requisite power and authority to carry out Dealer's business as now and
whenever conducted and to enter into and perform Dealer's obligations under this Agreement.
Except as may be expressly provided herein below, all of the terms, covenants and
conditions of this Agreement shall be binding on, and shall inure to the benefit of, Dealer and the
permitted successors, assigns and nominees of Dealer, as Developer's lessee of the Site.
Wherever the tern "Dealer" is used herein, such tern shall include any permitted successors and
assigns of Dealer as herein provided.
2. Qualifications.
6 2005 VIP MOTORS DDA
ninnzmn»iva000 nn
DRAFT
Subject to the provisions of Section 303, the qualifications and identity of Developer and
Dealer are of particular concern to the Agency, and it is because of such qualifications and
identities that Agency has entered into this Agreement with Developer and Dealer. The Agency
has considered the experience, financial capability, and product being marketed by Dealer and its
affiliates, the Site location and characteristics, the public costs of acquiring and developing the
Site and return on investment, and the product mix necessary to produce a successful auto
dealership facility. Based upon these considerations, the Agency has imposed those restrictions
on transfer set forth in this Agreement.
C. (§ 303) Restrictions on Transfer.
1. Transfer Defined.
As used in this section, the tern "transfer" shall include any assignment, hypothecation,
mortgage, pledge, conveyance, or encumbrance of this Agreement, the Site, or the improvements
thereon. A transfer shall also include the transfer to any person or group of persons acting in
concert of more than twenty-five percent (25%) of the present ownership and/or control of
Developer or Dealer in the aggregate taking all transfers into account on a cumulative basis. In
the event Developer, Dealer or the applicable successor is a corporation or trust, such transfer
shall refer to the transfer of the issued and outstanding capital stock of Developer or Dealer, as
applicable, or of beneficial interests of such trust. hi the event that Developer or Dealer is a
limited or general partnership, such transfer shall refer to the transfer of more than twenty-five
percent (25%) of the limited or general partnership interest. In the event that Developer or
Dealer is a joint venture, such transfer shall refer to the transfer of more than twenty-five percent
(25%) of the ownership and/or control of any such joint venture partner, taking all transfers into
account on a cumulative basis.
2. Restrictions Prior to Completion.
Prior to issuance of the Certificate of Completion, Developer shall not transfer this
Agreement or any of Developer's rights hereunder, or any interest in the Site or in the
improvements thereon, directly or indirectly, voluntarily or by operation of law, except as
provided below, without the prior written approval of Agency, and if so purported to be
transferred, the same shall be null and void. In considering whether it will grant approval to any
assignment by Developer of its interest in the Site before the issuance of the Certificate of
Completion, which assignment requires Agency approval, Agency shall consider factors such as
(i) whether the completion of the Project is jeopardized; (ii) the financial strength and capability
of the proposed assignee to perform Developer's obligations hereunder; and (iii) the proposed
assignee's experience and expertise in the planning, financing, development, ownership, and
operation of similar projects.
In the absence of specific written agreement by Agency, prior to the issuance of a
Certificate of Completion, no assignment or transfer by Developer of all or any portion of its
interest in the Site or this Agreement (including without limitation an assignment or transfer not
requiring Agency approval hereunder) shall be deemed to relieve it or any successor party from
any obligations under this Agreement with respect to the completion of the development of the
Project with respect to that portion of the Site which is so transferred. In addition, no attempted
I mnnvnm vza000 na 7
2005 VIP MOTORS DDA
DRAFT
assignment of any of Developer's obligations hereunder shall be effective unless and until the
successor party executes and delivers to Agency an assumption agreement in a form approved by
the Agency assuming such obligations.
3. Exceptions.
The foregoing prohibition shall not apply to any of the following:
(i) Any mortgage, deed of trust, or other form of conveyance for
financing, as provided in Section 512, but Developer shall notify
Agency in advance of any such mortgage, deed of trust, or other
form of conveyance for financing pertaining to the Site.
Developer's intention is for BMW Financial Services to finance
the development. It is acknowledged that BMW Financial
Services requires a right of first refusal as part of its financial
package in order to preserve the continuity of the Site as a BMW
franchise.
(ii) Any mortgage, deed of trust, or other form of conveyance for
restructuring or refinancing of any amount of indebtedness
described in subsection (a) above, provided that the amount of
indebtedness incurred in the restructuring or refinancing does not
exceed the outstanding balance on the debt incurred to finance the
improvements on the Site, including any additional costs of
construction, whether direct or indirect.
(iii) The conveyance or dedication of any portion of the Site to the City
or other appropriate governmental agency, or the granting of
easements or permits to facilitate the development of the Site.
(iv) A sale or transfer resulting from or in connection with a
reorganization as contemplated by the provisions of the Internal
Revenue Code of 1986, as amended or otherwise, in which the
ownership interests of a corporation are assigned directly or by
operation of law to a person or persons, frnn or corporation which
acquires the control of the voting capital stock of such corporation
or all or substantially all of the assets of such corporation.
(v) A sale or transfer of fifty percent (50%) or more of ownership or
control interest between members of the same family, or transfers
to a trust, testamentary or otherwise, in which the beneficiaries
consist solely of members of the tmstor's family, transfers to a
corporation or partnership or other legal entity in which the
members of the transferor's family have a controlling majority
interest of fifty-one percent(51%) or more.
(vi) A conveyance of the Site to any entity which controls, is controlled
by or is under common control with Developer, or to a partnership
8 2005 VIP MOTORS DDA
ni nmmn»ianoov na
DRAFT
or other legal entity of which Developer is the managing general
partner or equivalent.
4. Restrictions After Completion.
It is hereby acknowledged by Developer and Agency that the Site is being conveyed to
the Developer by the Agency to carry out the purposes of the Redevelopment Plan. Therefore,
subsequent to the issuance of the Certificate of Completion for Phase 1 of the Project, Developer
may not sell, transfer, convey, hypothecate, assign or sublease all or any portion of its interest in
the Site without complying with the transfer restrictions contained herein or in the CC&Rs.
IV. (§ 400) ACQUISITION AND DISPOSITION OF THE SITE.
A. (§ 401) Acquisition of the Site.
The Site consists of one eight-acre parcel, which the Agency is acquiring from Millie
Browne, a member of the Tribe, which means that the Agency's acquisition of the Site requires
approval of the transfer from the BIA. Although the Agency has entered into an agreement to
acquire the Site, should the BIA fail to approve the transfer of the Site, upon Agency's delivery
of written notice of this fact to Developer, this Agreement shall automatically terminate without
liability to either party.
B. (§ 402) Conveyance of the Site; Purpose of Agreement.
In accordance with and subject to all of the ternis, covenants and conditions of this
Agreement, Agency agrees to convey the Site to Developer subject to the terns of the Deed and
CC&Rs, and Developer agrees to accept the Site and develop the Site with an auto dealership
consistent with the Scope of Development and the permissible uses as further described in
Section 601. Pursuant to the terms of this Agreement, Developer agrees to develop an
automobile dealership facility to house a BMW franchise.
C. (§ 403) No Agency Financial Assistance.
Developer acknowledges that Agency shall not provide any financial assistance to
Developer for Developer's acquisition of the Site or development of the Project thereon. This is
due to the following factors, which are described more fully in the "Summary Report" prepared
by Agency and approved by City pursuant to Section 33433 of the Community Redevelopment
Law: 1) Developer is responsible for paying the fill costs of all improvements to be constructed
on the Site; and 2) the Purchase Price to be paid by Developer is determined sufficient to cover
the Agency's acquisition costs. The total cost for Agency is estimated to be approximately Two
Million Seven Hundred Sixty Thousand Dollars $2,760,000 for site acquisition. The Purchase
Price is sufficient to retire all of the above costs.
This Agreement does not provide for any sharing of sales tax or tax increment generated
by the Project between Developer, Agency and/or City. All sales tax and tax increment revenues
apportioned to City and Agency from the Project shall be retained by City and Agency. Further,
Developer shall be responsible for paying all fees and charges typically required by the City for
similar development projects.
9 2005 VIP MOTORS DDA
Al nnvnn i v naool na
DRAFT
The Developer shall be responsible for all construction and development costs to
constrict the Project on the Site, including: compliance with the California Environmental
Quality Act, grading and site preparation building construction; site development and
infrastructure; design; building permit and development fees; and financing. The Project is more
particularly described in the Scope of Development. The total development cost for Developer is
estimated to be in excess of$10,000,000.
D. (§ 404) Escrow .
Escrow shall be opened within the time period in the Schedule of Performance. This
Agreement shall constitute the joint Escrow instructions of the Agency and the Developer, and a
duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of
Escrow. Escrow Agent is empowered to act under these instructions. Agency and Developer
shall promptly prepare, execute, and deliver to the Escrow Agent such additional Escrow
instructions consistent with the teens herein as shall be reasonably necessary. No provision of
any additional Escrow instructions shall modify this document without specific written approval
of the modification(s) by both Developer and Agency.
E. (§ 405) Conditions to Close of Escrow .
1. Developer's Conditions to Closing.
Developer's obligation to acquire the Site and to close Escrow hereunder, shall, in
addition to any other conditions set forth herein in favor of Developer, be conditional and
contingent upon the satisfaction, or waiver by Developer, of each and all of the following
conditions (collectively the "Developer's Conditions to Closing") within the time provided in the
Schedule of Performance:
W Title shall be conveyed in a good condition subject only to those
exceptions recited in the Deed and those exceptions to title
approved pursuant to Section 408.
(ii) Developer shall have obtained evidence of financing commitments
for the acquisition and development of the entire Site in
accordance with Section 409, and Agency shall have approved
such commitments.
(iii) Agency shall have deposited into Escrow the executed Deed.
(iv) Developer shall have approved (or waived) in accordance with
Section 410 the physical condition of the entire Site.
(v) Agency shall have acquired good and marketable title to the Site
from the current owner, including approval by the BIA.
(vi) As of the Closing, Agency shall not be in default hereunder, nor
shall there be any event or occurrence which with the passage of
10 2005 VIP MOTORS DDA
nlnn4/M1111A0Q1 nn
DRAFT
time or giving of notice or both would constitute such a default by
Agency.
(vii) Agency shall prepare 'and deliver a Phase I environmental report
for the Site.
Any waiver of the foregoing conditions must be express and in writing. Timely notice of
disapproval or failure to waive based upon the foregoing conditions shall entitle Developer to
terminate Escrow pursuant to Section 406 herein without further liability of one party to the
other.
2. A2enev's Conditions to Closinjj.
Agency's obligation to deliver the Site and to close Escrow hereunder, shall, in addition
to any other conditions set forth herein in favor of Agency, be conditional and contingent upon
the satisfaction, or waiver by Agency, of each and all of the following conditions (collectively
the "Agency's Conditions to Closing") within the time provided in the Schedule of Performance:
(i) Developer shall not have made or attempted to make a transfer in
violation of Section 303.
(ii) Developer shall have deposited into Escrow the Purchase Price
within _ days of Developer's receipt of Agency's written request
that the deposit be made.
(iii) Developer shall have prepared a preliminary development plan
adequate to commence the entitlement process with the City.
(iv) Title shall be conveyed in a good condition subject only to those
exceptions recited in the Deed and those exceptions to title
approved pursuant to Section 408.
(v) Agency shall have acquired a good and marketable title to the Site
from the current owner, including approval by the BIA.
(vi) Developer shall have obtained evidence of financing commitments
for the acquisition and development of the entire Site in
accordance with Section 409, and Agency shall have approved
such commitments.
(vii) As of the Closing, Developer shall not be in default hereunder, nor
shall there be any event or occurrence which with the passage of
time or giving of notice or both would constitute such a default by
Developer.
Any waiver of the foregoing conditions must be express and in writing. In the event that
Developer fails to satisfy Agency's foregoing conditions or defaults in the performance of its
11 2005 VIP MOTORS DDA
mnnvnminaooi na
DRAFT
obligations hereunder, Agency may terminate this Escrow pursuant to Section 406 without any
liability to Developer.
F. (§ 406) Procedure in Event of Failure of Conditions(s) to Closing;
Termination.
In the event one or more of the Developer's Conditions to Closing or the Agency's
Conditions to Closing is not timely satisfied or waived by the benefited party, that party shall
have the right to terminate the Escrow and this Agreement. In such event, the terminating party
may, in writing, demand return of its money, papers, or documents from the Escrow Agency and
shall deliver a copy of such demand to the non-terminating party, which notice shall state the
condition that has not been satisfied. No demand shall be recognized by the Escrow Agent until
ten (10) days after the Escrow Agent shall have mailed copies of such demand to the non-
terminating party, and if no objections are raised in writing to the terminating party and the
Escrow Agent by the non-terminating party within the ten (10) day period, the Escrow Agent
shall comply with the terminating party's request. In the event the non-terminating party timely
objects, an additional thirty (30) day opportunity to cure or otherwise satisfy the unperformed
conditions shall be provided and, only if the unperformed condition remains unsatisfied at the
end of said 30-day period, shall the termination occur.
G. (§ 407) Conveyance of the Site.
1. Time for Conveyance.
Escrow shall close after satisfaction (or waiver by the benefited party) of all conditions to
close of Escrow, and within _ days of Developer's deposit of the Purchase Price into Escrow,
unless extended by the mutual agreement of the parties or any Enforced Delay. Possession of the
Site shall be delivered to Developer concurrently with the conveyance of fee title in the Site free
of all tenancies and occupants other than any title matters approved in accordance with Section
408 and immediately subsequent to, so as to appear concurrent with, the transfer of fee title in
the Site from the Tribe to the Agency. Accordingly, the Purchase Price shall not be released
until the transfer of title to the Site to Developer has occurred and title has been vested in
Developer.
2. Escrow Agent to Advise of Costs.
On or before the date set in the Schedule of Performance, the Escrow Agent shall advise
the Agency and the Developer in writing of the fees, charges, and costs necessary to clear title
and close Escrow , and of any documents which have not been provided by said party and which
must be deposited in Escrow to permit timely Closing.
3. Deposits By Agency and Developer Prior to Closing.
On or before, but not later than 1:00 p.m. of the date set for the Closing in the Schedule
of Performance, Agency shall deposit into Escrow (i) the Deed for the Site, executed and
acknowledged by Agency; (ii) BIA approval; (iii) an estoppel certificate certifying that
Developer has completed all acts, other than as specified, necessary for conveyance, if such be
12 2005 VIP MOTORS DDA
m nnann i I rzaonv nA
DRAFT
the fact; and (iv)payment to Escrow Agent of Agency's share of costs as determined by the
Escrow Agent pursuant to Section 411.
On or before, but not later than 1:00 p.m. of the date set for the Closing in the Schedule
of Performance, Developer shall deposit into Escrow (i) the deed of trust or other security
instrument securing the financing approved by Agency pursuant to Section 409, if any; (ii) an
estoppel certificate certifying that Agency has completed all acts, other than as specified,
necessary to conveyance, if such be the fact; (iii) the executed and acknowledged CC&Rs; and
(iv) payment to Escrow Agent of Developer's share of costs as determined by the Escrow Agent
pursuant to Section 411.
Prior to the Closing Date, Developer and Agency shall execute and deliver a certificate
("Taxpayer ID Certificate") in such form as may be required by the IRS pursuant to Section 6045
of the Internal Revenue Code, or the regulations issued pursuant thereto, certifying as to the
description of the Site, date of closing, gross price, if any, and the taxpayer identification
numbers for Developer and Agency. Prior to the Closing, Developer and Agency shall cause to
be delivered to the Escrow Agent such other items, instruments and documents, and the parties
shall take such further actions, as may be necessary or desirable in order to complete the Closing.
At the Closing neither party shall be in breach of its obligations hereunder.
4. Recordation and Disbursement of Funds.
Upon the completion by the Agency and Developer of the deliveries and actions specified
in these Escrow instructions as a precedent to Closing, the Escrow Agent shall be authorized to
buy, affix and cancel any documentary stamps and pay any transfer tax and recording fees, if
required by law, and thereafter cause to be recorded in the appropriate records of Riverside
County, California, the Deed, the CC&Rs, and any other appropriate instruments delivered
through this Escrow , if necessary or proper to, and provided that the leasehold interest can vest
in Developer in accordance with the terms and provisions herein. Concurrent with recordation,
Escrow Agent shall deliver the Title Policy to Developer insuring title and conforming to the
requirements of Section 409. Following recordation, the Escrow Agent shall deliver copies of
said instruments to Developer and Agency. In addition, after deducting any sums specified in
this Agreement, the Escrow Agent shall disburse funds to the party entitled thereto, including
delivery of the Deposit to Agency.
H. (§ 408) Title Matters.
1. Condition of Title.
At Close of Escrow, Agency shall convey to Developer fee simple title to the Site,
subject only to: (i) the Redevelopment Plan, this Agreement and the Deed; (ii) current taxes, a
lien not yet payable; (iii) quasi-public utility, public alley and public street easements of record
or as generally described in the Attachments hereto; and (iv) covenants, conditions and
restrictions and other encumbrances and title exceptions approved by Developer under this
Section. Agency shall convey title pursuant to the Deed in the form set forth in Attachment No.
5 hereto.
2. Agency Not to Encumber Site.
13 2005 VIP MOTORS DDA
mnnsrnmIiaaoov nn
DRAFT
Agency hereby warrants to Developer that it has not and will not, from the time of
Developer's review of the Preliminary Title Report to close of Escrow, transfer, sell,
hypothecate, pledge, or otherwise encumber the Site without the express written permission of
Developer.
3. Approval of Title Exceptions.
Prior to the date in the Schedule of Performance, Agency shall deliver a Preliminary Title
Report, dated no earlier than the date of this Agreement, to Developer including copies of all
documents referenced therein. Prior to the date in the Schedule of Performance, Developer shall
deliver to Agency written notice, with a copy to Escrow Agent, specifying in detail any
exception disapproved and the reason therefore. Prior to the date in the Schedule of
Performance, Agency shall deliver written notice to Developer as to whether Agency will or will
not cure the disapproved exceptions. If Agency elects not to cure the disapproved exceptions,
Developer may terminate Escrow, without any liability of Agency to Developer, or Developer
may withdraw its earlier disapproval. If Agency elects to cure the disapproved exceptions,
Agency shall do so on or before the Closing.
4. Title Poliev.
At the Close of Escrow , Escrow Agent shall furnish Developer with a standard CLTA
Policy of Title Insurance ("Title Policy") for the Developer's fee interest, wherein the Title
Company shall insure that title to the Site shall be vested in Developer, containing no exception
to such title which has not been approved or waived by Developer in accordance with this
Section. The Title Policy shall include any available additional title insurance, extended
coverage or endorsements that Developer has reasonably requested. The Agency shall pay only
for that portion of the title insurance premium attributable to the standard coverage for a CLTA
policy and for any endorsements necessary to cure any disapproved title exceptions. Developer
shall pay the premium for said additional title insurance, extended coverage or special
endorsements or survey, if any.
I. (§ 409) Developer Financing.
1. Developer's Financial Statements.
By the time specified in the Schedule of Performance, Developer agrees to deliver to
Agency, for Agency's approval, financial statements which, in the opinion of the Agency,
demonstrate that the Developer has the financial capability to undertake the development
provided herein. Such financial statements shall include statements from financial institutions
with whom Developer conducts business evidencing their willingness to provide the financing
required hereunder.
2. Obtaining Construction and Permanent Loans.
By the time specified in the Schedule of Performance, Developer agrees to deliver to
Agency and obtain the approval of Agency of irrevocable written commitments from financial
institutions licensed to do business in California and acceptable to the Agency ("Lender")
agreeing to make a construction loan and a permanent loan to Developer and secured by a First
14 2005 VIP MOTORS DDA
n i nm/nn i o/aAnov nA
DRAFT
Deed of Trust (said commitment and loan are sometimes referred to collectively as the "Loan").
The amount of the commitment shall not be less than the amount of the construction contract,
plus all consultant and loan fees, "points," commissions, charges, furnishings, fixtures, taxes,
interest, start-up and other costs and expenses of developing the Site, less the amount of
Developer's equity contribution, if any, to the cost of construction. The constriction
commitment shall be on said Lender's usual and customary commercial terms and conditions.
3. Covenants of Parties.
Agency covenants to take all reasonable actions necessary to assist Developer in
obtaining financing, including preparation, to the best of its ability and to the extent of its
knowledge, of an environmental questionnaire and disclosure statement. Developer covenants
and agrees to take all action, furnish all information, give all consents and pay all sums required
to keep said commitment and Loan in full force and effect and shall comply with all conditions
thereof, and shall promptly execute, acknowledge and deliver all loan applications, credit
applications and data, financial statements, and loan documents in connection therewith, and
shall actually draw upon and utilize the full amount of said Loan only for financing the cost of
the Project. Agency approves BMW Financial Services as a qualified lender.
4. Agency Approval of Lender.
The Developer shall not enter into any conveyance for financing without the prior written
approval of Agency. The Agency's written approval or disapproval shall be given by the time
provided in the Schedule of Performance. Agency's review of the Lender shall be limited to the
question of whether or not said Lender is a qualified and responsible financial or lending
institution or other acceptable entity or person capable of performing its obligations under the
Loan.
Agency approves BMW Financial Services as a qualified lender.
J. (§ 410) Physical and Environment Condition of Site.
1. Site Assessment and Remediation.
The enviromnental condition of the Site is currently unknown. Agency shall prepare a
Phase I environmental report as a condition to closing. However, Agency is not a long-time
owner of the Site and is acquiring the Site through an exchange agreement with no warranties by
the prior owner. Accordingly, Developer acknowledges that the Agency has not undertaken any
environmental assessment of the Site whatsoever, other than the Phase I, and that the Agency
makes no representations regarding the condition of the Site or the Site's fitness for the auto
dealership facility.
2. Disclaimer of Warranties.
Upon the Closing, Developer shall acquire the Site in its "AS-IS" condition and shall be
responsible for any defects in the Site, whether patent or latent, including, without limitation, the
physical, environmental and geotechnical condition of the Site, and the existence of any
contamination, Hazardous Materials, vaults, debris, pipelines, or other structures located on,
15 2005 VIP MOTORS DDA
Al MI M n na000 na
DRAFT
tinder or about the Site, and Agency makes no other representation or warranty concerning the
physical, environmental, geotechnical or other condition of the Site, the suitability of the Site for
the Project, or the proposed use of the Site, and Agency specifically disclaims all representations
or warranties of any nature concerning the Site made by it, the City and their respective
employees, agents and representatives. The foregoing disclaimer includes, without limitation,
topography, climate, air, water rights, utilities, soil, subsoil, existence of Hazardous Materials or
similar substances, the purpose for which the Site is suited, or drainage. Agency makes no
representation or warranty concerning the compaction of soil upon the Site, nor of the suitability
of the soil for construction.
3. Hazardous Materials.
Developer understands and agrees that, in the event Developer incurs any loss or liability
concerning Hazardous Materials (as hereinafter defined) and/or underground storage tanks
whether attributable to events occurring prior to or following the Closing, then Developer may
look to current or prior owners of the Site, but in no event shall Developer look to Agency or
City for any liability or indemnification regarding Hazardous Materials and/or underground
storage tanks. Developer, and each of the entities constituting Developer, if any, from and after
the Closing, hereby waives, releases, remises, acquits and forever discharges Agency, City, their
directors, officers, shareholders, employees, and agents, and their heirs, successors, personal
representatives and assigns, of and from any and all Environmental Claims, Environmental
Cleanup Liability and Environmental Compliance Costs, as those terns are defined below, and
from any and all actions, suits, legal or administrative orders or proceedings, demands, actual
damages, punitive damages, loss, costs, liabilities and expenses, which concern or in any way
relate to the physical or environmental conditions of the Site, the existence of any Hazardous
Material thereon, or the release or threatened release of Hazardous Materials therefrom, whether
existing prior to, at or after the Closing. It is the intention of the parties pursuant to this release
that any and all responsibilities and obligations of Agency and City, and any and all rights,
claims, rights of action, causes of action, demands or legal rights of any kind of Developer, its
successors, assigns or any affiliated entity of Developer, against the Agency or City, arising by
virtue of the physical or environmental condition of the Site, the existence of any Hazardous
Materials thereon, or any release or threatened release of Hazardous Material therefrom, whether
existing prior to, at or after the Closing, are by this release provision declared null and void and
of no present or future force and effect as to the parties; provided, however, that no parties other
than the Indemnified Parties (defined below) shall be deemed third party beneficiaries of such
release. In connection therewith, Developer and each of the entities constituting Developer,
expressly agree to waive any and all rights which said party may have with respect to such
released claims under Section 1542 of the California Civil Code which provides as follows:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor."
DEVELOPER'S INITIALS: AGENCY'S INITIALS:
I
I
16 2005 VIP MOTORS DDA
m nnvnm�rnaoov na
DRAFT
Developer and each of the entities constituting Developer, shall, from and after the
Closing, defend, indemnify and hold harmless Agency, City and their officers, directors,
employees, agents and representatives (collectively, the "Indemnified Parties") from and against
any and all Environmental Claims, Environmental Cleanup Liability, Environmental Compliance
Costs, and any other claims, actions, suits, legal or administrative orders or proceedings,
demands or other liabilities resulting at any time from the physical and/or environmental
conditions of the Site whether before or after the Closing or from the existence of any Hazardous
Materials or the release or threatened release of any Hazardous Materials of any kind
whatsoever, in, on or under the Site occurring at any time whether before or after the Closing,
including, but not limited to, all foreseeable and unforeseeable damages, fees, costs, losses and
expenses, including any and all attorneys' fees and environmental consultant fees and
investigation costs and expenses, directly or indirectly arising therefrom, and including fines and
penalties of any nature whatsoever, assessed, levied or asserted against any Indemmified Parties
to the extent that the fines and/or penalties are the result of a violation or an alleged violation of
any Environmental Law. Developer further agrees that in the event Developer obtains, from
former or present owners of the Site or any other persons or entities, releases from liability,
indemnities, or other forms of hold harmless relating to the subject matter of this section,
Developer shall use its diligent efforts to obtain for Agency and City the same releases,
indemnities and other comparable provisions.
For purposes of this Section 410, the following terms shall have the following meanings:
"Environmental Claim" means any claim for personal injury, death
and/or property damage made, asserted or prosecuted by or on behalf of any third party,
including, without limitation, any govermnental entity, relating to the Site or its operations and
arising or alleged to arise under any Environmental Law.
"Environmental Cleanup Liability" means any cost or expense of any
nature whatsoever incurred to contain, remove, remedy, clean up, or abate any contamination or
any Hazardous Materials on or rmder all or any part of the Site, including the ground water
thereunder, including, without limitation, (i) any direct costs or expenses for investigation, study,
assessment, legal representation, cost recovery by governmental agencies, or ongoing monitoring
in connection therewith and (ii) any cost, expense, loss or damage incurred with respect to the
Site or its operation as a result of actions or measures necessary to implement or effectuate any
such containment, removal, remediation, treatment, cleanup or abatement.
"Environmental Compliance Cost" means any cost or expense of any
nature whatsoever necessary to enable the Site to comply with all applicable Environmental
Laws in effect. "Environmental Compliance Cost" shall include all costs necessary to
demonstrate that the Site is capable of such compliance.
"Environmental Law" means any federal, state or local statute,
ordinance, rule, regulation, order, consent decree, judgment or common-law doctrine, and
provisions and conditions of permits, licenses and other operating authorizations relating to (i)
pollution or protection of the environment, including natural resources, (ii) exposure of persons,
including employees, to Hazardous Materials or other products, raw materials, chemicals or
other substances, (iii) protection of the public health or welfare from the effects of by-products,
17 2005 VIP MOTORS DDA
m nnvnm 1iaa000 na
DRAFT
wastes, emissions, discharges or releases of chemical sub-stances from industrial or commercial
activities, or (iv) regulation of the manufacture, use or introduction into commerce of chemical
substances, including, without limitation, their manufacture, formulation, labeling, distribution,
transportation, handling, storage and disposal.
"Hazardous Material" is defined to include any hazardous or toxic
substance, material or waste which is or becomes regulated by any local governmental authority,
the State of California, or the United States Government. The term "Hazardous Material"
includes, without limitation, any material or substance which is: (i) petroleum or oil or gas or any
direct or derivate product or byproduct thereof, (ii) defined as a "hazardous waste," "extremely
hazardous waste" or "restricted hazardous waste" under Sections 25115, 25117 or 25122.7, or
listed pursuant to Section 25140, of the California Health and Safety Code; (iii) defined as a
"hazardous substance" under Section 25316 of the California Health and Safety Code; (iv)
defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Sections
25501(o) and (p) and 25501.1 of the California Health and Safety Code (Hazardous Materials
Release Response Plans and Inventory); (v) defined as a "hazardous substance" under Section
25281 of the California Health and Safety Code (Underground Storage of Hazardous
Substances); (vi) "used oil" as defined under Section 25250.1 of the California Health and Safety
Code; (vii) asbestos; (viii) listed under Article 9 or defined as hazardous or extremely hazardous
pursuant to Article 1 of Title 22 of the California Code of Regulations, Division 4, Chapter 30;
(ix) defined as "waste" or a "hazardous substance" pursuant to the Porter-Cologne Act, Section
13050 of the California Water Code; (x) designated as a "toxic pollutant" pursuant to the Federal
Water Pollution Control Act, 33 U.S.C. § 1317; (xi) defined as a "hazardous waste" pursuant to
the Federal Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. (42 U.S.C.
§ 6903); (xii) defined as a "hazardous substance" pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq. (42 App. U.S.C.
§ 9601); (xiii) defined as "Hazardous Material" or a "Hazardous Substance" pursuant to the
Hazardous Materials Transportation Act, 49 U.S.C. § 1801, et seq.; or (xiv) defined as such or
regulated by any "Superfund" or "Superlien" law, or any other federal, state or local law, statute,
ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability or
standards of conduct concerning Hazardous Materials, oil wells, underground storage tanks,
and/or pipelines, as now, or at any time hereafter, in effect.
Notwithstanding any other provision of this Agreement, Participant's release and
indemnification as set forth in the provisions of this Article, as well as all other provisions of this
Article, shall survive the termination of this Agreement and shall continue in perpetuity.
Notwithstanding anything to the contrary in this Section, Developer's limited release and
indemnification of Agency and City and the Indemnified Parties from liability pursuant to this
Section shall not extend to Hazardous Materials brought onto the Site by Agency or City or their
respective contractors, agents or employees.
K. (§ 411) Costs of Escrow.
1. Allocation of Costs.
18 2005 VIP MOTORS DDA
mnnvnminaoo�nA
DRAFT
The Escrow Agent is authorized to allocate costs as follows: Agency shall pay the cost of
the Title Policy as provided above while Developer shall pay premiums for any additional
insurance, extended coverage or special endorsements. Agency shall pay the documentary
transfer tax as well as all recording fees. Developer and Agency shall each pay one-half of all
Escrow and similar fees, provided that if one party defaults under this Agreement or cancels the
Escrow through no fault of the other, the defaulting parry shall pay all Escrow fees and charges.
Each party shall pay its own attorneys' fees.
2. Prorations and Adjustments.
Ad valorem taxes and assessments on the Site and insurance for the current year shall be
prorated by the Escrow Agent as of the date of Closing with the Agency responsible for those
levied, assessed or imposed prior to Closing and the Developer responsible for those after
Closing. If the actual taxes are not known at the date of Closing, the proration shall be based
upon the most current tax figures. When the actual taxes for the year of Closing become known,
Developer and Agency shall, within thirty days thereafter, reprorate the taxes in cash between the
parties.
3. Extraordinary Services of Escrow Agent.
It is understood that Escrow fees and charges contemplated by this Agreement
incorporate only the ordinary services of the Escrow Agent as listed in these instructions. hi the
event that the Escrow Agent renders any service not provided for in this Agreement, or that the
Escrow Agent is made a party to, or reasonably intervenes in, any litigation pertaining to this
Escrow or the subject matter thereof, then the Escrow Agent shall be reasonably compensated for
such extraordinary services and reimbursed for all costs and expenses occasioned by such
default, controversy or litigation.
4. Escrow Agent's Right to Retain Documents.
Escrow Agent shall have the right to retain all documents and/or other things of value at
any time held by it hereunder until such compensation, fees, costs and expenses shall be paid.
L. (§ 412) Responsibility of Escrow Agent.
1. Deposit of Funds.
All funds received in Escrow shall be deposited by the Escrow Agent in a special Escrow
account with any state or national bank doing business in the State of California and may not be
combined with other Escrow funds of Escrow Agent or transferred to any other general Escrow
account or accounts.
2. Notices.
All communications from the Escrow Agent shall be directed to the addresses and in the
manner provided in Section 801 of this Agreement for notices, demands and communications
between Agency and Developer.
19 2005 VIP MOTORS DDA
m nnamm oiaa000 na
DRAFT
3. Sufficiency of Documents.
The Escrow Agent is not to be concerned with the sufficiency, validity, correctness of
form, or content of any document prepared outside of Escrow and delivered to Escrow . The
sole duty of the Escrow Agent is to accept such documents and follow Developer's and
Agency's instructions for their use.
4. Exculpation of Escrow Agent.
The Escrow Agent shall in no case or event be liable for the failure of any of the
Conditions to Closing of this Escrow , or for forgeries or false impersonation, unless such
liability or damage is the result of negligence or willful misconduct by the Escrow Agent.
5. Responsibilities in the Event of Controversies.
If any controversy documented in writing arises between Developer and Agency or with
any third party with respect to the subject matter of this Escrow or its terms or conditions, the
Escrow Agent shall not be required to determine the same, to return any money, papers or
documents, or take any action regarding the Site prior to settlement of the controversy by a final
decision by an arbitrator, by a court of competent jurisdiction, or by written agreement of the
parties to the controversy, as the case may be. The Escrow Agent shall be responsible for timely
notifying Developer and Agency of the controversy. In the event of such a controversy, the
Escrow Agent shall not be liable for interest or damage costs resulting from failure to timely
close Escrow or take any other action unless such controversy has been caused by the failure of
the Escrow Agent to perform its responsibilities hereunder.
V. (§ 500) DEVELOPMENT OF THE SITE.
A. (§ 501) Scope of Development.
The Site shall be developed by Developer in two phases as provided in the Scope of
Development and the Developer's Basic Concept Drawings, approved concurrently herewith.
Notwithstanding any other provision set forth in this Agreement to the contrary, in the event of
any conflict between the narrative description of the Project in this Agreement (including the
Scope of Development) and the approved plans and permits, when obtained, the approved plans
and permits shall govern.
B. (§ 502) Development Plans,Final Building Plans, Environmental Review.
1. Proposed Development's Consistency With Plans and Codes.
Agency warrants and represents that the City's General Plan, Zoning Ordinance, and
Redevelopment Plan pen-nit Developer's proposed development, and construction, operation, and
use of the Site as provided in this Agreement, including without limitation the Scope of
Development, subject only to (i) approval of the Project pursuant to Health and Safety Code
Section 33433, (ii) those development approvals yet to be obtained, including Site Design
Review, and (iii) City's and Agency's review and approval of the Project in accordance with the
California Environmental Quality Act; provided that it is expressly understood by the parties
20 2005 VIP MOTORS DDA
n i nmmn i o iaa000 na
DRAFT
hereto that Agency makes no representations or warranties with respect to approvals required by
any other governmental entity or with respect to approvals hereinafter required from City and
Agency, Agency and City reserving full police power authority over the Project. Nothing in this
Agreement shall be deemed to be a prejudgment or commitment with respect to such items nor a
guarantee that such approvals or permits will be issued within any particular time or with or
without any particular conditions.
2. Evolution of Development Plan.
Concurrently with the approval of this Agreement, the Agency has approved the
Developer's Basic Concept Drawings. On or before the date set forth in the Schedule of
Performance, Developer shall submit to the City preliminary, and thereafter final, drawings and
specifications for development of the Site in accordance with the Scope of Development, and all
in accordance with the City's requirements. The term preliminary and final drawings shall be
deemed to include site plans, building plans and elevations, grading plans, if applicable,
landscaping plans, parking plans, material pallets, a description of structural, mechanical, and
electrical systems, and all other plans, drawings and specifications. Final drawings will be in
sufficient detail to obtain a building permit. Said plans, drawings and specifications shall be
consistent with the Scope of Development and the various development approvals referenced
hereinabove, except as such items may be amended by City(if applicable) and by mutual consent
of Agency and Developer. Plans (concept, preliminary and construction) shall be progressively
more detailed and will be approved if a logical evolution of plans, drawings or specifications are
submitted.
3. Developer Best Efforts to Obtain Approvals.
Developer shall exercise its best efforts to timely submit all documents and information
necessary to obtain all development and building approvals from the City in a timely manner.
Not by way of limitation of the foregoing, in developing and constructing the Project, Developer
shall comply with all applicable development standards in City's Municipal Code and shall
comply with all building code, landscaping, signage, and parking requirements, except as may be
permitted through approved variances and modifications.
4. Agency Assistance.
Subject to Developer's compliance with (i) the applicable City and Agency development
standards for the Site, and (ii) all applicable laws and regulations governing such matters as
public hearings, site plan review and environmental review, Agency agrees to provide reasonable
assistance to Developer in the expeditious processing of Developer's submittals required under
this Section in order that Developer can obtain a final City action on such matters within the time
set forth in the Schedule of Performance. City or Agency's failure to provide necessary
approvals or permits within such time periods, after and despite Developer's reasonable efforts to
submit the documents and information necessary to obtain the same, shall constitute an Enforced
Delay.
5. Disapproval.
21 2005 VIP MOTORS DDA
ninmmmoiaaoov nn
DRAFT
Unless noted otherwise in the Schedule of Performance, the Agency shall approve or
disapprove any submittal made by Developer pursuant to this Section within forty-five (45) days
after such submittal. All submittals made by Developer shall note the 45-day time limit, and
specifically reference this Agreement and this Section. Any disapproval shall state in writing the
reason for the disapproval and the changes which the Agency requests be made. Developer shall
make the required changes and revisions and resubmit for approval as soon as is reasonably
practicable but no more than thirty(30) days of the date of disapproval. Thereafter, Agency shall
have an additional thirty (30) days for review of the resubmittal, but if the Agency disapproves
the resubmittal, then the cycle shall repeat, until the Agency's approval has been obtained.
6. CEQA.
The Agency shall be responsible for obtaining the approval of this Agreement and the
Project as required by the California Environmental Quality Act ("CEQA"). Without limitation
of the foregoing, Developer specifically acknowledges and agrees that the Developer shall
satisfy all conditions necessary to ensure that the Project conforms to all applicable CEQA
requirements. The Developer agrees to supply information and otherwise assist Agency, upon
Agency's request, to determine the environmental impact of the proposed development and to
allow Agency to prepare and process such environmental documents, if any, as may need to be
completed for the development pursuant to the requirements of CEQA.
C. (§ 503) Cost of Construction.
The cost of developing the Site and constructing all of the on-site and off-site
improvements at or about the Site required to be constricted for the Project shall be borne by
Developer. Agency is not providing any direct or indirect financial assistance to Developer that
would make any part of the Project a "public work" "paid for in whole or in part out of public
funds," as described in California Labor Code Section 1720, such that it would cause Developer
to be required to pay prevailing wages for any aspect of the development. Notwithstanding the
foregoing, to the extent that (contrary to the parties' intent) Developer is required to or is
determined to be responsible to pay prevailing wages for the Project, Developer shall defend and
hold the Agency and the City harmless from and against any all increase in construction costs, or
other liability, loss, damage, costs, or expenses (including reasonable attorneys' fees and court
costs) arising from or as a result of any action or deternunation that ay portion of the Project is
subject to payment of prevailing wages.
D. (§ 504) Schedule of Performance; Progress Reports.
The Parties shall begin and complete all plans, reviews, constriction and development
specified in the Scope of Development within the times specified in the Schedule of Performance
or such reasonable extensions of said dates as may be mutually approved in writing by the
parties.
Once construction is commenced, it shall be diligently pursued to completion, and shall
not be abandoned for more than thirty (30) consecutive days, except when due to an Enforced
Delay. Developer shall keep the Agency informed of the progress of construction and submit to
22 2005 VIP MOTORS DDA
n i nm mn i o/iAwi AA
DRAFT
the Agency written reports of the progress of the constriction when and in the form requested by
the Agency.
E. (§ 505) Indemnification During Construction.
During the periods of construction on the Site and until such time as the Agency has
issued a Certificate of Completion with respect to the construction of the improvements thereon,
the Developer agrees to and shall indemnify and hold the Agency and the City harmless from
and against all liability, loss, damage, costs, or expenses (including reasonable attorneys' fees
and court costs) arising from or as a result of the death of any person or any accident, injury,
loss, or damage whatsoever caused to any person or to the property of any person which shall
occur on the Site and which shall be directly or indirectly caused by any acts done thereon or any
errors or omissions of the Developer or its agents, servants, employees, or contractors. The
Developer shall not be responsible for(and such indemnity shall not apply to) any acts, errors, or
omissions of the Agency or the City, or their respective agents, servants, employees, or
contractors.
F. (§ 506) Bodily Iniury, Property Damage and Workers' Compensation
Insurance.
1. Types of Insurance.
Prior to the entry of Developer on the Site and the commencement of any construction by
or on behalf of Developer, Developer shall procure and maintain, at its sole cost and expense, in
a form and content satisfactory to Agency, during the entire term of such entry or construction,
the following policies of insurance:
(i) Commercial General Liability Insurance. Developer shall keep or
cause to be kept in force for the mutual benefit of Agency, City,
and Developer comprehensive broad form commercial general
liability insurance against claims and liability for personal injury or
death arising from the use, occupancy, disuse or condition of the
Site, improvements or adjourning areas or ways, affected by such
use of the Site or for property damage, providing protection of at
least Five Million Dollars ($5,000,000.00) for bodily injury or
death to any one person, at least Five Million Dollars
($5,000,000.00) for any one accident or occurrence, and at least
One Million Dollars ($1,000,000.00) for property damage.
(ii) Builder's Risk Insurance. Developer shall procure and shall
maintain in force "all risks" builder's risk insurance including
vandalism and malicious mischief, covering improvements in place
and all material and equipment at the job site furnished under
contract, but excluding contractor's, subcontractor's, and
construction manager's tools and equipment and property owned
by contractor's or subcontractor's employees, with limits in
accordance with subsection (a) above.
23 2005 VIP MOTORS DDA
m nnvnm onaao1 nA
DRAFT
(iii) Worker's Compensation. Developer shall also furnish or cause to
be furnished to Agency evidence reasonably satisfactory to it that
any contractor with whom Developer has contracted for the
performance of any work for which Developer is responsible
hereunder carries workers' compensation insurance as required by
law.
(iv) Other Insurance. Developer may procure and maintain any
insurance not required by this Agreement.
2. Insurance Policy Form, Content and Insurer.
All insurance required by express provisions hereof shall be carried only by responsible
insurance companies licensed to do business by California, rated "A" or better in the most recent
edition of Best Rating Guide, the Key Rating Guide or in the Federal Register, and only if they
are of a financial category Class IX or better. All such policies shall contain language, to the
extent obtainable, to the effect that (i) any loss shall be payable notwithstanding any act of
negligence of Agency, City, or Developer that might otherwise result in the forfeiture of the
insurance, (ii) the insurer waives the right of subrogation against Agency/City and against
Agency's/City's agents and representatives; (iii) the policies are primary and noncontributing
with any insurance that may be carried by Agency/City; and (iv) the policies cannot be canceled
or materially changed except after thirty (30) days' written notice by the insurer to Agency/City
or Agency's/City's designated representative. Developer shall furnish Agency with copies of all
such policies promptly on receipt of them, or with certificates evidencing the insurance. Agency
and City shall be named as additional insureds on all policies of insurance required to be
procured by the terms of this Agreement.
3. Failure to Maintain Insurance and Proof of Compliance.
Developer shall deliver to Agency, in the manner required for notices, copies of
certificates of all insurance policies required hereunder together with evidence satisfactory to
Agency of payment required for procurement and maintenance of each policy within the
following time limits:
(i) For insurance required above, prior to entry of Developer on the
Site and the commencement of any constriction by or on behalf of
Developer.
(ii) For any renewal or replacement of a policy already in existence, at
least ten (10) days before expiration or termination of the existing
policy.
If Developer fails or refiises to procure or maintain insurance as required hereby or fails
or refuses to furnish Agency with required proof that the insurance has been procured and is in
force and paid for, such failure or refusal shall be a default hereunder, subject to the applicable
cure period.
G. (§ 507) City and Other Governmental Agency Permits.
24 2005 VIP MOTORS DDA
mnncmniinaaai na
DRAFT
Before commencement of construction or development of any buildings, structures, or
other works of improvement upon the Site which are Developer's responsibility under the Scope
of Development, Developer shall, at its own expense, secure or cause to be secured any and all
permits which may be required by City or any other governmental agency affected by such
construction, development or work. The Developer shall not be obligated to commence
construction if any such permit is not issued despite good faith effort by Developer. If there is
delay beyond the usual time for obtaining any such permits due to no fault of Developer, the
Schedule of Performance shall be extended to the extent such delay prevents any action which
could not legally or would not in accordance with good business practices be expected to occur
before such permit was obtained. Developer shall pay all normal and customary fees and
charges applicable to such permits and any fees or charges hereafter imposed by City or Agency
which are standard for and uniformly applied to similar projects in the City.
H. (§ 508) Rights of Access.
Representatives of the Agency shall have the reasonable right of access to the Site
without charges or fees, at any time during normal construction hours during the period of
construction, for the purpose of assuring compliance with this Agreement, including but not
limited to the inspection of the construction work being performed by or on behalf of Developer.
Such representatives of Agency shall be those who are so identified in writing by the Executive
Director of Agency. Each such representative of Agency shall identify himself or herself at the
job site office upon his or her entrance to the Site, and shall provide Developer, or the
constriction superintendent or similar person in charge on the Site, a reasonable opportunity to
have a representative accompany him or her during the inspection. Agency shall indenmify,
defend, and hold Developer harmless from any injury or property damage caused or liability
arising out of Agency's exercise of this right of access.
I. (§ 509) Applicable Laws.
Developer shall carry out the construction of the improvements to be constructed by
Developer in conformity with all applicable laws, including all applicable federal and state labor
laws.
J. (§ 510) Anti-discrimination During Construction.
Developer, for himself and his successors and assigns, agrees that in the construction of
the improvements to be constructed by Developer, it shall not discriminate against any employee
or applicant for employment because of race, color, creed, religion, sex, marital status, gender,
ancestry or national origin.
K. (§ 511) Taxes, Assessments, Encumbrances and Liens.
If applicable, Agency shall pay, when due, all real estate taxes and assessments assessed
or levied prior to conveyance of the Site. Developer shall pay, when due, all real estate taxes and
assessments assessed or levied subsequent to conveyance of the Site, if any. Until the date
Developer is entitled to the issuance by Agency of a Certificate of Completion, Developer shall
not place or allow to be placed thereon any mortgage, trust deed, encrumbrance or lien (except
mechanic's liens prior to suit to foreclose the same being filed) prohibited by this Agreement.
25 2005 VIP MOTORS DDA
ni nnzmn»naooi nn
DRAFT
Developer shall remove or have removed any levy or attachment made on the Site, or assure the
satisfaction thereof, within a reasonable time, but in any event prior to a sale thereunder.
Nothing herein contained shall be deemed to prohibit Developer from contesting the validity or
amounts of any tax, assessment, encumbrance or lien, nor to limit the remedies available to
Developer in respect thereto.
L. (§ 512) Rishts of Holders of Approved Security Interests in Site.
1. Definitions.
As used in this Section, the tern "mortgage" shall mean a leasehold mortgage and
include any mortgage, deed of trust, or other security interest, or sale and lease-back, or any
other form of conveyance for financing. The term "holder" shall include the holder of any such
mortgage, deed of trust, or other security interest, or the lessor under a lease-back, or the grantee
under any other conveyance for financing.
2. No Encumbrances Except Mortgages to Finance the Project.
Notwithstanding the restrictions on transfer in Section 303, mortgages required for any
reasonable method of financing of the construction of the improvements are permitted before
issuance of a Certificate of Completion but only for the purpose of securing loans of funds used
or to be used for financing the acquisition of the Site, for the construction of improvements
thereon, and for any other expenditures necessary and appropriate to develop the Site under this
Agreement, or for restructuring or refinancing any of same, so long as the refinancing does not
exceed the then-outstanding balance of the existing financing. The Developer (or any entity
permitted to acquire title under this Section) shall notify the Agency in advance of any mortgage
if the Developer or such entity proposes to enter into the same before issuance of the Certificate
of Completion. The Developer or such entity shall not enter into any such conveyance for
financing without the prior written approval of the Agency as provided in Section 409. Any
lender approved by the Agency pursuant to Section 409 shall not be bound by any amendment,
implementation, or modification to this Agreement subsequent to its approval without such
lender giving its prior written consent thereto. In any event, the Developer shall promptly notify
the Agency of any mortgage, encumbrance, or lien that has been created or attached thereto prior
to issuance of a Certificate of Completion, whether by voluntary act of the Developer or
otherwise.
3. Developer's Breach Shall Not Defeat Mortgage Lien.
Developer's breach of any of the covenants or restrictions contained in this Agreement
shall not defeat or render invalid the lien of any mortgage made in good faith and for value as to
the Site, or any part thereof or interest therein, but unless otherwise provided herein, the terms,
conditions, covenants, restrictions, easements, and reservations of this Agreement shall be
binding and effective against the holder of any such mortgage of the Site whose interest is
acquired by foreclosure, trustee's sale or otherwise.
4. Holder Not Obligated to Construct or Complete Improvements.
26 2005 VIP MOTORS DDA
m MI M i I naoov na
DRAFT
The holder of any mortgage shall in no way be obligated by the provisions of this
Agreement to construct or complete the improvements or to guarantee such construction or
completion. Nothing in this Agreement shall be deemed or construed to permit or authorize any
such holder to devote the Site or any portion thereof to any uses, or to construct any
improvements thereon, other than those uses or improvements provided for or authorized by this
Agreement.
5. Notice of Default to Mortgagee, Deed of Trust or Other Security
Interest Holders.
Whenever Agency shall deliver any notice or demand to Developer with respect to any
breach or default by Developer hereunder, Agency shall at the same time deliver a copy of such
notice or demand to each holder of record of any mortgage who has previously made a mitten
request to Agency therefore, or to the representative of such lender as may be identified in such a
written request by the lender. No notice of default shall be effective as to the holder unless such
notice is given.
6. Right to Cure.
Each holder (insofar as the rights of Agency are concerned) shall have the right, at its
option, within ninety(90) days after the receipt of the notice, to:
(i) Obtain possession, if necessary, and to commence and diligently
pursue said cure until the same is completed, and
(ii) Add the cost of said cure to the security interest debt and the lien
or obligation on its security interest;
provided that in the case of a default which cannot with diligence be remedied or cured within
such ninety (90) day period, such holder shall have additional time as reasonably necessary to
remedy or cure such default.
In the event there is more than one such holder, the right to cure or remedy a breach or
default of Developer under this Section shall be exercised by the holder first in priority or as the
holders may otherwise agree among themselves, but there shall be only one exercise of such
right to cure and remedy a breach or default of Developer under this Section.
No holder shall undertake or continue the constriction or completion of the
improvements (beyond the extent necessary to preserve or protect the improvements or
construction already made) without first having expressly assumed Developer's obligations to
Agency by written agreement satisfactory to Agency with respect to the Site or any portion
thereof in which the holder has an interest. The holder must agree to complete, in the manner
required by this Agreement, the improvements to which the lien or title of such holder relates,
and submit evidence satisfactory to the Agency that it has the qualifications and financial
responsibility necessary to perform such obligations. Any holder properly completing such
improvements shall be entitled, upon written request made to Agency, to a Certificate of
Completion from Agency.
27 2005 VIP MOTORS DDA
Al nnzmn i v IIAnn9 AA
DRAFT
7. Agency's Rights upon Failure of Holder to Complete Improvements.
In any case where one hundred eighty (180) days after default by Developer in
completion of construction of improvements under this Agreement, the holder of any mortgage
creating a lien or encumbrance upon the Site or improvements thereon has not exercised the
option to construct afforded in this Section or if it has exercised such option and has not
proceeded diligently with construction, Agency may, after ninety (90) days' notice to such
holder and if such holder has not exercised such option to construct within said ninety (90) day
period, purchase the mortgage (or the fee interest if the holder has foreclosed), upon payment to
the holder of an amount equal to the sum of the following:
(i) The unpaid mortgage debt plus airy accrued and unpaid interest
(less all appropriate credits, including those resulting from
collection and application of rentals and other income received
during foreclosure proceedings, if any);
(ii) All expenses incurred by the holder with respect to foreclosure, if
any;
(iii) The net expenses (exclusive of general overhead), incurred by the
holder as a direct result of the ownership or management of the
Site, such as insurance premiums or real estate taxes, if any;
(iv) The costs of any improvements made by such holder, if any; and
(v) An amount equivalent to the interest that would have accrued on
the aggregate of such amounts had all such amounts become part
of the mortgage debt and such debt had continued in existence to
the date of payment by the Agency.
hi the event that the holder does not exercise its option to construct afforded in this
Section, and Agency elects not to purchase the mortgage of holder, and, upon written request by
the holder to Agency, Agency agrees to use reasonable efforts to assist the holder in selling the
holder's interest to a qualified and responsible party or parties (as determined by Agency), such
party or parties shall assume the obligations of making or completing the improvements required
to be constructed by Developer, or such other improvements in their stead as shall be satisfactory
to Agency. The proceeds of such a sale shall be applied first to the holder of those iterns
specified in subparagraphs (i) through (v) hereinabove, and any balance remaining thereafter
shall be applied as follows:
(i) First, to reimburse Agency, on its own behalf and on behalf of the
City, for all costs and expenses actually and reasonably incurred by
Agency, including but not limited to payroll expenses,
management expenses, legal expenses, and others.
(ii) Second, to reimburse Agency, on its own behalf and on behalf of
the City, for all payments made by Agency to discharge any other
encumbrances or liens on the Site or to discharge or prevent from
28 2005 VIP MOTORS DDA
n i nmmn i v/lAW1 na
DRAFT
attaching or being made any subsequent encumbrances or liens
due, to obligations, defaults, or acts of Developer, its successors or
transferees.
(iii) Third, to reimburse Agency, on its own behalf and on behalf of the
City, for all payments made by Agency in connection with its
efforts assisting the holder in selling the holder's interest in
accordance with this Section.
(iv) Fourth, any balance remaining thereafter shall be paid to
Developer.
8. Right of Agency to Cure Mortgage,Deed of Trust or Other Security
Interest Default.
In the event of a default or breach by Developer (or an entity permitted to acquire title
under this Section) of a mortgage prior to the issuance by Agency of a Certificate of Completion
for the Site or portions thereof covered by said mortgage, and the holder of any such mortgage
has not exercised its option to complete the development, Agency may cure the default prior to
completion of any foreclosure. In such event, Agency shall be entitled to reimbursement from
Developer or other entity of all costs and expenses incurred by Agency in curing the default,
including legal costs and attorneys' fees, which right of reimbursement shall be secured by a lien
upon the Site to the extent of such costs and disbursements. Any such lien shall be subject to:
(i) Any mortgage for financing permitted by this Agreement; and
(ii) Any rights or interests provided in this Agreement for the
protection of the holders of such mortgages for financing;
provided that nothing herein shall be deemed to impose upon Agency any affirmative obligations
(by the payment of money, construction or otherwise) with respect to the Site in the event of its
enforcement of its lien.
9. Right of the Agency to Satisfy Other Liens on the Property After
Conveyance of Title.
After the conveyance of title and prior to the recordation of a Certificate of Completion
for construction and development, and after the Developer has had a reasonable time to
challenge, cure, or satisfy any liens or encumbrances on the Site or any portion thereof, the
Agency shall have the right to satisfy any such liens or encumbrances; provided, however, that
nothing in this Agreement shall require the Developer to pay or make provision for the payment
of any tax, assessment, lien or charge so long as the Developer in good faith shall contest the
validity or amount thereof, and so long as such delay in payment shall not subject the Site or any
portion thereof to forfeiture or sale.
10. Minor Amendments.
29 2005 VIP MOTORS DDA
m nnzmn i o iaa001 nn
DRAFT
Agency's Executive Director shall be authorized to approve and execute minor non-
substantive amendments to this Agreement as may be requested by Developer's lender in
relation to the protection of such lender's security interest in the Site, without formal approval of
the Agency Board of Directors.
M. (§ 513) Certificate of Completion.
Upon the completion of all construction required to be completed by Developer on the
Site, Agency shall furnish Developer with the Certificate of Completion for the Site thereof, in
the form attached hereto as Attachment No. 6, upon written request therefore by Developer. The
Certificate of Completion shall be executed and notarized so as to pennit it to be recorded in the
Office of the Recorder of Riverside County.
The executed Certificate of Completion shall be, and shall state that it constitutes,
conclusive determination of satisfactory completion of the construction and development of the
improvements required by this Agreement upon the Site and of full compliance with the terms of
this Agreement with respect thereto. A partial Certificate of Completion applicable to less than
the entire Site shall not be permitted.
After the issuance of a Certificate of Completion, any party then owning or thereafter
purchasing, leasing or otherwise acquiring any interest in the Site shall not (because of such
ownership, purchase, lease, or acquisition) incur any obligation or liability under this Agreement,
except that such party shall be bound by the covenants, encumbrances, and easements contained
in the Deed and the CC&Rs. After issuance of a Certificate of Completion, the Agency shall not
have any rights or remedies under this Agreement, except as otherwise set forth in the Deed and
the CC&Rs.
Agency shall not unreasonably withhold a Certificate of Completion. If Agency refuses
or fails to furnish a Certificate of Completion within thirty (30) days after written request from
Developer or any entity entitled thereto, Agency shall provide a written statement of the reasons
Agency refiised or failed to furnish a Certificate of Completion. The statement shall also contain
Agency's opinion of the action Developer must take to obtain a Certificate of Completion. If the
reason for such refusal is confined to the immediate availability of specific items or materials for
landscaping, or other minor so-called "punch list" items, Agency will issue its Certificate of
Completion upon the posting of a bond in an amount representing one hundred fifty percent
(150%) of the fair value of the work not yet completed or other assurance reasonably satisfactory
to Agency.
A Certificate of Completion shall not constitute evidence of compliance with or
satisfaction of any obligation of Developer to any holder of a mortgage, or any insurer of a
mortgage securing money loaned to finance the improvements, or any part thereof. Such
Certificate of Completion is not notice of completion as referred to in California Civil Code
Section 3093. Nothing herein shall prevent or affect Developer's right to obtain a Certificate of
Occupancy from the City before the Certificate of Completion is issued.
N. (§ 514) Estoppels.
30 2005 VIP MOTORS DDA
mnnzmn»iaaaoo na
DRAFT
At the request of Developer or any holder of a mortgage or deed of trust, Agency shall,
from time to time and upon the request of such holder, timely execute and deliver to Developer
or such holder a written statement of Agency that no default or breach exists (or would exist with
the passage of time, or giving of notice or both) by Developer under this Agreement, if such be
the fact, and certifying as to whether or not Developer has, at the date of such certification,
complied with any obligation of Developer hereunder as to which Developer or such holder may
inquire. The form of any estoppel letter shall be prepared by the holder or Developer and shall
be at no cost to Agency.
VI. (§ 600) USES OF THE SITE.
A. (§ 601) Use For Automobile Sales.
The Developer covenants and agrees for itself, its successors, its assigns and every
successor in interest that during constriction and thereafter, the Developer, such successors and
such assigns shall devote the Site to the uses specified in the Redevelopment Plan and in this
Agreement. Developer further agrees to use, devote, and maintain the Site and each part thereof
only for automobile sales and attendant uses, as provided in the Deed attached as Attachment
No. 5 and subject to the restrictions contained in the CC&Rs.
B. (§ 602) Obligation to Refrain from Discrimination.
There shall be no discrimination against, or segregation of, any person, or group of
persons, on account of race, color, creed, religion, sex, marital status, gender, national origin or
ancestry in the rental, sale, lease, sublease, transfer, use, occupancy, or enjoyment of the Site, or
any portion thereof, nor shall Developer, or any person claiming tmder or through Developer,
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees of the Site or any portion thereof. The nondiscrimination and nonsegregation covenants
contained herein shall remain in effect in perpetuity.
C. (§ 603) Form of Nondiscrimination and Nonsegregation Clauses.
Developer shall refrain from restricting the rental, sale, or lease of any portion of the Site
on the basis of race, color, creed, religion, sex, marital status, ancestry, gender or national origin
of any person. All such deeds, leases or contracts shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses:
31 2005 VIP MOTORS DDA
n i nm/An i I I1d0n9 nn
DRAFT
1. Deeds. In Deeds the following language shall appear: "The grantee herein
covenants by and for himself or herself, his or her heirs, executors, administrators and assigns,
and all persons claiming under or through them, that there shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion, sex,
marital status, gender, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee, or any
persons claiming under or through him or her, establish or permit any such practice or practices
of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed.
The foregoing covenants shall run with the land."
2. Leases. In Leases the following language shall appear: "The lessee herein
covenants by and for himself or herself, his or her heirs, executors, administrators and assigns,
and all persons claiming under or through him or her, and this lease is made and accepted upon
and subject to the following conditions: That there shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion, sex,
marital status, gender, national origin or ancestry in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee, or any person
claiming under or through him or her, establish or pen-nit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, sublessees, subtenants or vendees in the premises herein leased."
3. Contracts. Any contracts which Developer or Developer's heirs,
executors, administrators or assigns propose to enter into for the sale, transfer, or leasing of the
Site shall contain a nondiscrimination and nonsegregation clause substantially as set forth in
Section 602 and in this Section. Such clause shall bind the contracting party and subcontracting
party or transferee wider the instrument.
D. (§ 604) Maintenance of Improvements.
Developer covenants and agrees for itself, its successors and assigns, and every successor
in interest to the Site or any part thereof, that, after Agency's issuance of its Certificate of
Completion, the Developer shall be responsible for maintenance of all improvements that may
exist on the Site from time to time, including without limitation buildings, parking lots, lighting,
signs, and walls in first-class condition and repair, and shall keep the Site free from any
accumulation of debris or waste materials. The Developer shall also maintain all landscaping
required pursuant to Developer's approved landscaping plan in a healthy condition, including
replacement of any dead or diseased plants with plants of a maturity similar to those being
replaced. The foregoing maintenance obligations shall nm with the land and thereby become the
obligations of any transferee of the Site or any portion thereof. Developer's further obligations
to maintain the Site, and Agency's remedies in the event of Developer's default in performing
such obligations are set forth in the Deed and the CC&Rs. Developer hereby waives any notice,
public hearing, and other requirements of the public nuisance laws and ordinances of the City
that would otherwise apply, except as specified in said Deed or CC&Rs.
E. (§ 605) Effect of Covenants.
32 2005 VIP MOTORS DDA
mnnimnivaaaal na
DRAFT
Agency is deemed a beneficiary of the terms and provisions of this Agreement and of the
restrictions and covenants running with the land for and in its own right for the purposes of
protecting the interests of the community in whose favor and for whose benefit the covenants
naming with the land have been provided. The covenants in favor of Agency shall run without
regard to whether Agency has been, remains or is an owner of any land or interest therein in the
Site or in the Project Area. Agency shall have the right, if any of the covenants set forth in this
Agreement which are provided for its benefit are breached, to exercise all rights and remedies
and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the
curing of such breaches to which it may be entitled. With the exception of the City, no other
person or entity shall have any right to enforce the terns of this Agreement under a theory of
third-party beneficiary or otherwise. The covenants running with the land and their duration are
set forth in the Deed and the CC&Rs.
VII. (§ 700) DEFAULTS, REMEDIES AND TERMINATION.
A. (§ 701) Defaults, Right to Cure and Waivers.
Subject to any Enforced Delay, failure or delay by either party to timely perform any
covenant of this Agreement constitutes a default under this Agreement, but only if the parry who
so fails or delays does not commence to cure, correct or remedy such failure or delay within
thirty (30) days after receipt of a notice specifying such failure or delay, and does not thereafter
prosecute such cure, correction or remedy with diligence to completion.
The injured party shall give written notice of default to the party in default, specifying the
default complained of by the injured party. Except as required to protect against further
damages, the injured party may not institute proceedings against the party in default until thirty
(30) days after giving such notice. Failure or delay in giving such notice shall not constitute a
waiver of any default, nor shall it change the time of default.
Except as otherwise provided in this Agreement, waiver by either party of the
performance of any covenant, condition, or promise shall not invalidate this Agreement, nor shall
it be considered a waiver of any other covenant, condition, or promise. Waiver by either party of
the time for performing any act shall not constitute a waiver of time for performing any other act
or an identical act required to be performed at a later time. The delay or forbearance by either
party in exercising any remedy or right as to any default shall not operate as a waiver of any
default or of any rights or remedies or to deprive such party of its right to institute and maintain
any actions or proceedings which it may deem necessary to protect, assert, or enforce any such
rights or remedies.
I
I
33 2005 VIP MOTORS DDA
mnm rani vnaoov na
DRAFT
B. (§ 702) Legal Actions.
1. Institution of Legal Actions.
In addition to any other lights or remedies, and subject to the requirements of Section
701, either party may institute legal action to cure, correct or remedy any default, to recover
damages for any default, or to obtain any other remedy consistent with the purpose of this
Agreement. Legal actions must be instituted and maintained in the Superior Court of the Comity
of Riverside, State of California, in any other appropriate court in that county, or in the Federal
District Court in the Central District of California.
2. Applicable Law and Forum.
The internal laws of the State of California shall govern the interpretation and
enforcement of this Agreement, without regard to conflict of law principles.
3. Acceptance of Service of Process.
In the event that any legal action is commenced by Developer against Agency, service of
process on Agency shall be made by personal service upon the Executive Director or Secretary
of Agency, or in such other manner as may be provided by law. hi the event that any legal action
is commenced by Agency against Developer, service of process on Developer shall be made in
such manner as may be provided by law and shall be valid whether made within or without the
State of California.
C. (§ 703) Rights and Remedies are Cumulative.
Except as otherwise expressly stated in this Agreement, the rights and remedies of the
parties are cumulative, and the exercise by either party of one or more of its rights or remedies
shall not preclude the exercise by it, at the same or different times, of any other rights or
remedies for the same default or any other default by the other party.
D. (§ 704) Specific Performance.
In addition to any other remedies permitted by this Agreement, if either party defaults
hereunder by failing to perform any of its obligations herein, each party agrees that the other
shall be entitled to the judicial remedy of specific performance, and each party agrees (subject to
its reserved right to contest whether in fact a default does exist) not to challenge or contest the
appropriateness of such remedy. In this regard, Developer specifically acknowledges that
Agency is entering into this Agreement for the purpose of assisting in the redevelopment of the
Site and not for the purpose of enabling Developer to speculate with land.
E. (§ 705) Right of Reverter.
The Agency shall have the right, at its option, to reenter and take possession of the Site
with all improvements thereon and to terminate and re-vest in the Agency the estate conveyed to
the Developer, if after Closing and prior to the recordation of the Certificate of Completion, the
Developer (or his successors-in-interest) shall:
34 2005 VIP MOTORS DDA
m nnz mn i n/ijam na
DRAFT
1. Fail to commence construction of the improvements as required by this
Agreement for a period of ninety(90) days after written notice to proceed from the Agency,
provided that the Developer shall not have obtained an extension or postponement to which the
Developer may be entitled pursuant to this Agreement; or
2. Abandon or substantially suspend construction of the improvements for a
period of ninety(90) days after written notice of such abandonment or suspension from the
Agency, provided that the Developer shall not have obtained an extension of time to which the
Developer may be entitled to pursuant to this Agreement; or
3. Assign or attempt to assign this Agreement, or any rights herein, or
transfer, or suffer any involuntary transfer of, the Site, or any part thereof, in violation of this
Agreement, and such violation shall not be cured within thirty(30) days after the date of receipt
of written notice thereof by the Agency to the Developer.
The right to re-enter, repossess, terminate, and re-vest shall be subject to and be limited
by and shall not defeat, render invalid, or limit:
1. Any mortgage, deed of trust, or other security interests permitted by this
Agreement.
2. Any rights or interests provided in this Agreement for the protection of the
holders of such mortgages, deeds of trust or other security interests.
Upon the re-vesting in the Agency of possession to the Site, or any part thereof, as
provided in this Section 705, the Agency shall, pursuant to its responsibilities under state law,
use its best efforts to re-conveyed the Site, or any part thereof, as soon and in such manner as the
Agency shall find feasible and consistent with the objectives of such law and of the
Redevelopment Plan to a qualified and responsible party or parties (as determined by the
Agency), who will assume the obligation of making or completing the improvements, or such
other improvements in their stead, as shall be satisfactory to the Agency and in accordance with
the uses specified for the Site, or any part thereof, in the Redevelopment Plan.
In the event of a resale, the proceeds thereof shall be applied as follows:
(i) First, to reimburse the Agency on its own behalf or on behalf of the
City for all costs and expenses incurred by the Agency, including
but not limited to, salaries to personnel, legal costs and attorneys'
fees, and all other contractual expenses in connection with the
recapture, management, and resale of the Site (but less any income
derived by the Agency from the Site or part thereof in connection
with such management); all taxes, assessments and water and
sewer charges with respect to the Site (or, in the event that Site is
exempt from taxation or assessment or such charges during the
period of ownership, then such taxes, assessments, or charges, as
determined by the City, as would have been payable if the Site
were not so exempt); any payments made or necessary to be made
to discharge or prevent from attaching or being made any
I
35 2005 VIP MOTORS DDA
ninnamnn/aA001 nA
DRAFT
subsequent encumbrances or liens due to obligations incurred with
respect to the making or completion of the agreed improvements or
any part thereof on the Site or part thereof, and amounts otherwise
owing the Agency by the Developer, its successors, or transferees;
and
(ii) Second, to reimburse the Developer, its successor or transferee, up
to the amount equal to (i) the sum of the Purchase Price paid to the
Agency by the Developer for the Site, (ii) the costs incurred for the
development of the Site and for the agreed improvements existing
on the Site at the time of the re-entry and repossession, less (iii)
any gains or income withdrawn or made by the Developer from the
Site or the improvements thereon; and
(iii) Any balance remaining after such reimbursements shall be retained
by the Agency as its property.
To the extent that the right established in this Section involves a forfeiture, it must be
strictly interpreted against the Agency, the party for whose benefit it is created. The rights
established in this Section are to be interpreted in light of the fact that the Agency will sell the
Site to the Developer for development and not for speculation in undeveloped land.
F. (§ 706) Attornevs' Fees.
If either party to this Agreement is required to initiate or defend any action or proceeding
in any way arising out of the parties' agreement to or performance of this Agreement, or is made
a party to any action or proceeding by the Escrow Agent or other third party, the prevailing party
in such action or proceeding, in addition to any other relief which may be granted, whether legal
or equitable, shall be entitled to reasonable attorneys' fees from the other. As used herein, the
"prevailing party" shall be the party determined as such by a court of law pursuant to the
definition in Code of Civil Procedure Section 1032(a)(4), as it may be subsequently amended.
Attorneys' fees shall include attorneys' fees on any appeal. hi addition, a party entitled to
attorneys' fees shall be entitled to all other reasonable costs for investigating such action, taking
depositions and discovery and all other necessary costs the court allows which are incurred in
such litigation. All such fees shall be deemed to have accrued on commencement of such action
and shall be enforceable whether or not such action is prosecuted to judgment.
VIII. (§ 800) GENERAL PROVISIONS.
A. (§ 801) Notices, Demands and Communications Between the Parties.
Except as expressly provided to the contrary herein, any notice, consent, report, demand,
document or other such item to be given, delivered, furnished or received hereunder shall be
deemed given, delivered, furnished, and received when given in writing and personally delivered
to an authorized agent of the applicable party, or upon delivery by the United States Postal
Service, first-class registered or certified mail, postage prepaid, return receipt requested, or by a
national "overnight courier" such as Federal Express, at the time of delivery shown upon such
36 2005 VIP MOTORS DDA
ni nnamm vnaoov na
DRAFT
receipt; in either case, delivered to the address, addresses and persons as each party may from
time to time by written notice designate to the other and who initially are:
If to Developer: PARTNER LAND DEVELOPMENT, LLC
11300 Rodney Parham Road, Suite 300
Little Rock, Arkansas 72212
Attn:
VIP MOTOR CARS, LTD.
A copy to: 4095 East Palm Canyon
Palm Springs, California 92264
Attn: Jerry Johnson
If to Agency: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY
OF PALM SPRINGS
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
Attention: Executive Director
A copy to: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY
OF PALM SPRINGS
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
Attn: City Attorney
B. (§ 802) Nonliabilitv of City and Agency Officials and Employees; Conflicts of
Interest; Commissions.
1. Personal Liabilitv.
No member, official, employee, agent or contractor of City or Agency shall be personally
liable to Developer in the event of any default or breach by Agency or for any amount which
may become due to Developer or on any obligations Linder the terms of the Agreement; provided,
it is understood that nothing in this Section 802 is intended to limit Agency's liability.
2. Financial Interest.
I
No member, official, employee or agent of City or Agency shall have any financial
interest, direct or indirect, in this Agreement, nor participate in any decision relating to this
i Agreement which is prohibited by law.
i
i
i 3. Commissions.
Agency has not retained any broker or finder or paid or given, and will not pay or give,
any third person any money or other consideration for obtaining this Agreement. Agency shall
not be liable for any real estate commissions, brokerage fees or finders' fees which may arise
from this Agreement, and Developer agrees to hold Agency harmless fiom any claim by any
37 2005 VIP MOTORS DDA
ninny nmonnoo�na
DRAFT
broker, agent, or finder retained by Developer. Agency agrees to hold Developer harmless from
any claim by any broker, agent, or finder retained by Agency.
C. (§ 803) Force Majeure: Extension of Times of Performance.
In the event that the Developer is wholly or partially prevented from performing
obligations under this Agreement because of unforeseeable causes beyond the reasonable control
of and without the fault or negligence of the Developer ("Force Majeure"), including, but not
limited to, acts of God, labor disputes, sudden actions of the elements, or actions of non-
participating federal or state agencies or local jurisdictions, the Developer shall be excused from
whatever performance is affected by such unforeseeable cause to the extent so affected and such
failure to perform shall not be considered a material violation or breach, and provided further
that:
1. The suspension of performance is of no greater scope and no longer
duration than is required by the Force Majeure;
2. Within fifteen (15) days after the occurrence of the Force Majeure,
affected Developer shall give the Agency written notice describing the particulars of the
occurrence;
3. Developer shall use its best efforts to remedy its inability to perform
(however, this paragraph shall not require the settlement of any strike, walk-out, lock-out or
other labor dispute on terns which, in the sole judgment of the Developer, are contrary to their
interest); and
4. When Developer is able to resume performance of its obligations, the
Developer shall give the Agency written notice to that effect.
The following shall not be considered as events or causes beyond the control of
Developer, and shall not entitle Developer to an extension of time to perform: (i) Developer's
failure to obtain financing for the Project, and (ii) Developer's failure to negotiate agreements
with prospective users for the Project or the alleged absence of favorable market conditions for
such uses.
Times of performance under this Agreement may also be extended by mutual written
agreement by Agency and Developer. The Executive Director of Agency shall have the
authority on behalf of Agency to approve extensions of time not to exceed a cumulative total of
one hundred eighty(180) days with respect to the development of the Site.
I
i D. (§ 804) Books and Records.
I
1. Developer to Keep Records.
I
Developer shall prepare and maintain all books, records and reports necessary to
substantiate Developer's compliance with the terms of this Agreement or reasonably required by
the Agency.
I
I
38 2005 VIP MOTORS DDA
n i nm mn��naoov na
DRAFT
2. Riaht to Inspect.
Either party shall have the right, upon not less than seventy-two (72) hours notice, at all
reasonable times, to inspect the books and records of the other party pertaining to the Site as
pertinent to the purposes of this Agreement.
3. Ownership of Documents.
Copies of all drawings, specifications, reports, records, documents and other materials
prepared by Developer, its employees, agents and subcontractors, in the performance of this
Agreement, which documents are in the possession of Developer and are not confidential shall
be delivered to Agency upon request in the event of a termination of this Agreement, and
Developer shall have no claim for additional compensation as a result of the exercise by Agency
of its rights hereunder. The Agency shall have an unrestricted right to use such documents and
materials as if it were in all respects the owner of the same. Developer makes no warranty or
representation regarding the accuracy or sufficiency of such documents for any future use by
Agency, and Developer shall have no liability therefore. Notwithstanding the foregoing, the
Agency shall not have any right to sell, license, convey or transfer the documents and materials
to any third party, or to use the documents and materials for any other site, except in the case of a
termination of this Agreement due to default of Developer.
E. (§ 805) Assurances to Act in Good Faith.
Agency and Developer agree to execute all documents and instruments and to take all
actions, including the deposit of funds in addition to such funds as may be specifically provided
for herein, as may be required in order to consummate conveyance and development of the Site
as herein contemplated, and shall use their best efforts to accomplish the closing and subsequent
development of the Site in accordance with the provisions hereof. Agency and Developer shall
each diligently and in good faith pursue the satisfaction of any conditions or contingencies set
forth in this Agreement, subject to their approval.
F. (§ 806) Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the authorship
of this Agreement or any other rule of construction which might otherwise apply. The Section
headings are for purposes of convenience only and shall not be construed to limit or extend the
meaning of this Agreement. This Agreement includes all attachments attached hereto, which
include the: (1) Site map, (2) legal description of the Site, (3)Schedule of Performance, (4) Scope
of Development, (5) Grant Deed, (6) Certificate of Completion, and (7) Declaration of
Covenants, Conditions and Restrictions, which are by this reference incorporated in this
Agreement in their entirety. This Agreement also includes the Redevelopment Plan and any
other documents incorporated herein by reference, as though fully set forth herein.
G. (§ 807) Entire Agreement, Waivers and Amendments.
I
This Agreement integrates all of the terms and conditions mentioned herein, or incidental
hereto, and this Agreement supersedes all negotiations and previous agreements between the
39 2005 VIP MOTORS DDA
m nna mn��naoov na
DRAFT
parties with respect to all or any part of the subject matter hereof. All waivers of the provisions
of this Agreement, unless specified otherwise herein, must be in writing and signed by the
appropriate authorities of Agency or Developer, as applicable, and all amendments hereto must
be in writing and signed by the appropriate authorities of Agency and Developer.
H. (§ 808) Severabilitv.
In the event any term, covenant, condition, provision or agreement contained herein is
held to be invalid, void or otherwise unenforceable, by any court of competent jurisdiction, such
holding shall in no way affect the validity or enforceability of any term, covenant, condition,
provision or agreement contained herein.
I. (§ 809) Effect of Redevelopment Plan Amendment.
Pursuant to the provisions of the Redevelopment Plan for modification or amendment
thereof, Agency agrees that no further amendment to the Redevelopment Plan which changes the
uses or development permitted on the Site, or changes the restrictions or controls that apply to
the Site, or otherwise affects the Site, shall be made or become effective as to the Site without
the prior written consent of Developer. Further amendments to the Redevelopment Plan
applying to other property in the Project Area shall not require the consent of Developer.
J. (§ 810) Time for Acceptance of Agreement by Agency.
This Agreement, when executed by Developer and delivered to Agency, must be
authorized, executed and delivered by Agency, not later than the time set forth in the Schedule of
Performance or this instrument shall be void, except to the extent that Developer shall consent in
writing to further extensions of time for the authorization, execution, and delivery of this
Agreement. After execution by Developer, this Agreement shall be considered an irrevocable
offer until such time as such offer- shall become void due to the failure of the Agency to
authorize, execute and deliver the Agreement in accordance with this Section.
K. (§ 811) Execution.
1. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, and such counterparts shall constitute one and the same instrument.
2. Agency represents and warrants that: (i) it is a Redevelopment Agency
duly organized and existing under the laws of the State of California; (ii) by proper action of
Agency, Agency has been duly authorized to execute and deliver this Agreement, acting by and
thrrough its duly authorized officers; and (iii) the entering into this Agreement by Agency does
not violate any provision of any other agreement to which Agency is a party.
i3. Developer represents and warrants that: (i) it is duly organized and
existing under the laws of the State of Arkansas; (ii)by proper action of Developer, Developer
has been duly authorized to execute and deliver this Agreement, acting by and through its duly
authorized officers; and (iii) the entering into this Agreement by Developer does not violate any
provision of any other agreement to which Developer is a party.
I
40 2005 VIP MOTORS DDA
ninnamn»naoov na
DRAFT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
of execution by the Agency.
"AGENCY":
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM
SPRINGS
Date: By.
— Chair
ATTEST:
By:
Agency Secretary
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
By:
David J. Aleshire, Special Agency
Counsel
"DEVELOPER"
PARTNER LAND DEVELOPMENT, LLC,
an Arkansas corporation
By:
Its:
By:
Its:
Date:
I
I
41 2005 VIP MOTORS DDA
m nnamm�rzaoov na
DRAFT
ATTACHMENT NO. 2
2005 VIP MOTORS DDA
LEGAL DESCRIPTION OF SITE
EXHIBIT"A"
ALL TJIAT POI>"T'ION TIM WEST ONE HALF OF THE SOUTHEAST ONF QUARTER OF-IHE
NORTHWEST ONE QUARTER OF SECTION 30."lYlWNSHIP 4 SOUTH,RANGE S EAST SAN
BERNARDINO BASE,ALSO KNOWN AS ALLOTMENT 55 OF TUR AGUA CALILN E BAND OF
CAHITILLA INDIANS AS RECORDED IN THE BUREAU OF INDIAN AFFAIRS,DESCRIBED AS
FOLLOWS,
BEGINNING AT THE SOUTHWEST CORNI3R OF SAID WEST ONE HALF,THENCE NORTH OW-
05'46"WEST ALONG TTM WEST LINE OF SAID WEST ONE HALF A DISTANCE OF 68 1,17 PCBT
TO A MINT"ON THE SOUTHERLY LT ill OF THE COUNT'Y'11IGHWAY.NOW KNOWN AS EAST
PALM.CANYON DRIVE,AS ACCEPTED BY'1"Ifik BOARD OF SUPERVISORS OF RIVERSIDE
COUNTY,CALIFORNIA BY MINUTE BOOK 27 AT"PAGE ICI,SAID POINT BEING 40,w FEET
MEASURED AT RIGHT ANGLES FROM THE CENTERLINE OF SAID EAST PALM CANYON
DRIVE;
THENCE SOUTH 73*•00'-Ott"EAST AND PARALLEL TO SAID CENTER LINT;A DISTANCE OF
690,45 FEET TO THE EAST LINE OF SAID WEST ONE HALF;
THENCE SOUTH 000-03'-23"EAST ALONG SAID BAST LINE A DSITTANCE OF 477.80 FEET TO
THE SOUTHEAST CORNER OF SAID WEST ONE HALF;
THENCE SOUTH 89k52'-11"WEST ALONG THE SOUTI I LINE OF SAW WEST ONE HALF, A
DISTANCE OF 057.60 FEET" O TIM POINT Or BEGINNING.
CONTAINING 8.78 ACRES
SUBJECT TO ANY EASEMENT OF RECORD IF ANY,
ATTACHMENTNO 2
2005 VIP MOTORS DDA
Page I of I
nI nna mm I Icaeal na
DRAFT
ATTACHMENT NO. 3
2005 VIP MOTORS DDA
SCHEDULE OF PERFORMANCE
Agreement
Item To Be Performed Time For Performance Reference
1. Developer executes and delivers DDA to
Agency
2. Agency holds public hearing on DDA, June 29, 2005
approves or disapproves DDA and, if
approves, executes DDA
3. Open Escrow By June 17, 2005 402
4. Agency delivers to Developer Within 7 days after Agency 405.4
Preliminary Title Report opens Escrow
5. Developer approves or disapproves title Within 15 days after Opening 405.4
exceptions and public easements of Escrow
6. Agency notifies Developer whether Within 5 days after receipt 405.4
Agency will cure any disapproved from Developer of disapproved
exceptions or public easements exceptions
7. Developer provides Agency with Within 45 days after Agency 406
evidence of financial capability execution of DDA
S. Agency approves or disapproves Within 30 days after Agency 406
evidence of financial capability execution of DDA
9. Developer shall obtain franchise Within 45 days after Agency
approval and vehicle allocations from execution of DDA
manufacturer or distributor
10. Agency approves or disapproves Within 30 days of receipt by
financial commitment and lender Agency
11. Escrow Agent gives notice of fees, One (1)week prior to Closing 404.2
charges, costs and documents to close
Escrow
ATTACHMENT NO. 3
2005 VIP MOTORS DDA
Page I of 1
n i nnz mn i l iaa000 na
Lnrir i
Agreement
Item To Be Performed Time For Performance Reference
12. Deposits into Escrow by Agency:
a) Executed Deed On or before 1:00 p.m. on the 404.3
last business date preceding
the Closing Date
b) Estoppel Certificate, if requested On or before 1:00 p.m. on the 404.3
in writing by Developer last business date preceding
the Closing Date
c) Payment of Agency's share of On or before 1:00 p.m. on the 404.3; 408
Escrow Costs last business day preceding the
Closing Date
d) Taxpayer ID Certificate Prior to Closing Date 403.3
13. Deposits into Escrow by Developer:
a) Purchase Price On or before 1:00 p.m. on the 404.4
last business day preceding the
Closing Date
b) Estoppel Certificate On or before 1:00 p.m. on the 404.4
last business day preceding the
Closing date
c) CC&Rs On or before 1:00 p.m. on the 404.4
last business date preceding
the Closing Date
d) Payment of Developer's Share of On or before 1:00 p.m. on the 404.4; 408
Escrow Costs last business date preceding
the Closing Date
e) Certificates evidencing insurance Prior to entry on Site or 506
commencement of
construction
e) Taxpayer ID Certificate Prior to Closing Date 403.3
14. Agency or Developer, as case may be, Within 30 days after date 409.2; 701
may cure any condition to closing established therefore, or date
disapproved or waived; or may cure any of breach, as the case may be
default
ATTACHMENT NO. 3
2005 VIP MOTORS DDA
Page 2 of 2
m nna rnn I nnooI na
Ll\C1.1 1
Agreement
Item To Be Performed Time For Performance Reference
15. Developer disapproves physical Within 30 days after Opening 407.3
condition of Site or waives conditions of Escrow
16. Close of Escrow for Site; recordation As soon as possible after all of 204; 404.5
and delivery of documents the conditions contained herein
have been satisfied or waived,
but not later than
17. Developer prepares and submits to City Within 60 days after Agency 502.1
any required plans, drawings and execution of DDA
specifications
18. City approves (or disapproves) plans, Within 30 days after submittal 502.1; 504
and specifications, drawings by Developer
19. Developer revises and resubmits plans, Within 30 days after 405.2
drawings, and specifications, if disapproval
necessary
20. City reviews and approves or Within 15 days after 502.1; 504
disapproves resubmitted plans, drawings, resubmittal
and specifications, if necessary
21. Developer obtains all necessary permits On or before the date that is 504; 506;
and approvals, and commences ten(10) days after the date 507
construction of improvements City notifies Developer that
City is prepared to issue
building permits for the Project
22. Developer completes construction of Within one year after issuance 504
improvements of building permits
23. Agency issues certificate of Completion Within ten(10)days of written
for the Site request by Developer, and
Developer's satisfactory
completion of all
improvements
It is understood that the foregoing Schedule of Performance is subject to all of the terms
and conditions set forth in the text of the Agreement. The summary of the items of performance
in this Schedule of Performance is not intended to supersede or modify the more complete
description in the text. In the event of any conflict or inconsistency between this Schedule of
Performance and the text of the Agreement, the text shall govern.
ATTACHMENT NO. 3
2005 VIP MOTORS DDA
Page 3 of 3
ni nnzmn»nnaov nn
DRAFT
The time periods set forth in this Schedule of Performance may be altered or amended
only by written agreement signed by both Buyer and Agency. A failure by either party to
enforce a breach of any particular time provision shall not be construed as a waiver of any other
time provision. The Executive Director of Agency shall have the authority to approve extensions
of time without Agency Board action not to exceed a cumulative total of 180 days as provided in
Section 803,
ATTACHMENTNO. 3
2005 VIP MOTORS DDA
Page 4 of 4
m nrrz mn i v/IAQQ9 na
DRAFT
ATTACHMENT NO. 4
2005 VIP MOTORS DDA
SCOPE OF DEVELOPMENT
A. General
The Developer agrees that the Site shall be developed and improved in accordance with
the provisions of this Agreement, including all attachments, and the plans, drawings, and
related documents approved by the Agency pursuant hereto. The Developer, its
supervising architect, engineers, and contractor shall work with the Agency staff to
coordinate the overall design, architecture, site layout, open areas, landscaping and
parking with regards to mass, scale, bulk, color and materials. Any questions or issues
regarding the Scope of Development not included or addressed herein or in the
Disposition and Development Agreement ("DDA") shall be resolved in accordance with
the Palm Springs Municipal Code.
B. Design Criteria
1. Design Guidelines. The building(s) shall be consistent with BMW's requirements
for its facilities, which guidelines are incorporated herein by this reference and on
file in the office of 'the City's Director of Economic and Community
Development,
2. Architectural Quality. The building(s) shall have architectural excellence, both
individually and in terms of the context of the total complex. The design theme
and facade treatment shall be consistent with the "Concept Plan" attached hereto
as Exhibit "A," and shall be deemed consistent with the Concept Plan by virtue of
the City's issuance of a building permit. Open and landscaped areas shall be
designed with the same degree of excellence.
3. Site Plan. The Site Plan shall be consistent with the Schematic Site Plan attached
hereto as Exhibit "B."
C. Site Work
The Developer shall be responsible for constriction and installation of all Site
improvements. The Developer's improvements shall include, but may not be limited to,
the following:
1. Construction of buildings designed to accommodate automobile dealerships,
which building(s) shall consist of approximately 35,000 square feet of gross floor
area. Said gross floor area shall be broken down as follows:
Workshop and Support Areas: 15,000 s.f.
Wash and Detail Area: 1,000 s.f.
Service Reception and Administration: 1,000 s.f.
ATTACHMENT NO 4
2005 VIP MOTORS DDA
Page 1 of I
Al nnvnn 11/1d009 na
DRAFT
Service Drive under roof: 1,000 s.f.
Parts Department: 5,000 s.f.
Showroom: 5,000 s.f.
Sales Department: 2,000 s.f.
General Offices: 4,000 s.f.
Personal Facilities: 1,000 s.f.
TOTAL ENCLOSED AREA: 35,000 s.f.
The above footages are approximate and may be adjusted to some degree to fulfill
program requirements.
2. Parking area(s) shall be provided on-site. The design and construction, as well as
the number of parking spaces provided, shall be in accordance with the Palm
Springs Municipal Code. Construction of the parking areas shall include
installation of necessary drainage system(s) (including connections within the
public right-of-way), paving, installation of required landscaping and irrigation,
striping and labeling, all in accordance with the Palm Springs Municipal Code
and approved plans.
3. Paved area(s) shall be provided on-site designed to accommodate automobiles for
the purpose of display and backup storage. Paving of the area(s) used for backup
storage shall be consistent with the paving provided for required parking per
paragraph 2 above except that landscaping is not necessary in the storage area.
4. On-site landscaping and automatic irrigation system shall be installed and
maintained per approved plans consistent with the Palm Springs Municipal Code.
5. On-site lighting shall be installed in a manner consistent with the approved
lighting and electrical plans.
D. Landscaped Yards
Landscaped yards shall be maintained with landscaping and automatic irrigation. The
irrigation system shall be installed so that it can be operated as a part of the Site. No
vehicular parking or display shall occur within the landscaped yards.
E. Trash Storage
Trash storage areas shall be provided of sufficient size to ensure containment of all solid
waste materials generated from the Site. The size of the enclosure shall be detennined by
Agency staff based upon the size and nature of the facility proposed but shall not be less
than thirty (30) square feet. The trash enclosure shall be constricted of solid masonry
walls and shall not be less than five (5) feet in height with solid metal panel gates
equipped with self-closing devices. Adequate access shall be provided to the enclosure
for refuse pickup.
ATTACHMENTNO 4
2005 VIP MOTORS DDA
Page 2 of 2
nl nOl/nn II/xaoo9 na
Ll�L-11` 1
F. Sl 15
All signs shall be installed by the Developer. A sign program shall be submitted to the
City for approval. Building and, where necessary, electrical permits shall be obtained
prior to installation,painting or erection of signs.
G. Undergrounding Utilities
All new utilities servicing the Site shall be installed underground, including connections
to facilities within the public right-of-way.
H. Mechanical Equipment
On-site mechanical equipment, whether roof or ground mounted, shall be completely
screened from public view. Where public visibility will be minimal, the Director
Economic and Community Development may permit use of landscaping to screen ground
mounted equipment. No mechanical equipment, including electrical transformers, shall
be located in any required setback area.
I. Applicable Codes
All improvements shall be constructed in accordance with the California Building Code
(with Palm Springs modifications), the County of Riverside Fire Code (with Palm
Springs modifications), the Palm Springs Municipal Code and current City standards.
ATTACHMENTNO 4
2005 VIP MOTORS DDA
Page 3 of 3
ininnunmoizaoon na
ATTACHMENT NO. 5
2005 VIP MOTORS DDA
GRANT DEED
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Community Redevelopment Agency of the City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: Executive Director
(Space Above This Line for Recorder's Office Use Only)
(Exempt from Recording Fee per Gov. Code§6103)
GRANT DEED
FOR A VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged,
the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a
public body, corporate and politic ("Grantor") acting under the Commumity Redevelopment Law
of the State of California, hereby grants to PARTNER LAND DEVELOPMENT, LLC, an
Arkansas corporation ("Grantee"), the real property, hereinafter referred to as the "Site," in the
City of Palm Springs, County of Riverside, State of California, as more particularly described in
Exhibit "A" attached hereto and incorporated herein by this reference.
As conditions of this conveyance, Grantee covenants by and for itself and any successors-
in-interest for the benefit of Grantor and the City of Palm Springs, a municipal corporation, as
follows:
I. Governing Documents. The Site is being conveyed: (i) pursuant to a Disposition
and Development Agreement ("DDA") entered into by and between Grantor and Grantee dated
2005; and (ii) subject to the terms of the DDA, this Deed, the CC&Rs, and the
Redevelopment Plan, as those terms are defined in the DDA. The DDA and the Redevelopment
Plan are public records on file in the office of the City Clerk of the City of Palm Springs, located
at 3200 E. Tahquitz Canyon Way, Palm Springs, California 92262, and are incorporated herein
by this reference. Any capitalized teens not defined herein shall have the meanings ascribed to
them in the DDA. Grantee covenants and agrees for itself and its successors and assigns to
develop the Site in accordance with the DDA and thereafter to use, operate and maintain the Site
in accordance with the Redevelopment Plan, this Deed, and the CC&Rs. The Site is also
conveyed subject to easements and rights-of-way of record and other matters of record. In the
event of any conflict between this Deed and the DDA, the provisions of the DDA shall control.
2. Uses. Grantee may only use the Site for automobile, truck, or other vehicle
dealership purposes as part of a regional auto dealer, consistent with the terns, covenants and
conditions as set forth in the DDA and the CC&Rs; provided that with Grantor's approval, which
ATTACHMENTNO 5
2005 VIP MOTORS DDA
Page I of I
m nnzmn»nnoo1 nn
approval shall not be unreasonably withheld, Grantee may change the use of the Site. In
considering whether to grant approval, Grantor may consider those factors set forth in Section
303 of the DDA. The fleet sales and vehicle leases of VIP MOTOR CARS, LTD, a California
corporation, wholly owned by VIP MOTOR CARS ACQUISITION, INC., a California
corporation (collectively "Dealer") shall be made from the Site to maximize sales tax return to
the City of Palm Springs (but this shall not require payment of sales or use taxes on out-of-state
business if not required by State law). In addition, Grantee and Dealer shall use the Site only for
those uses as permitted in the DDA. Grantee shall have no right to subdivide, separate, or
partition the Site, except upon prior written consent of Grantor, which consent shall not be
unreasonably withheld. Breach of the terns, covenants, conditions, and provisions of the DDA
and CC&Rs shall be a material breach of this Deed. In general, Grantee, via Dealer, shall
operate the business conducted by Dealer on the Site in a prudent mariner, exercising customary
business practices and hours of operation, to maximize sales and enhance the reputation and
attractiveness of the business.
3. Term of Restriction. Grantee hereby covenants and agrees for itself, its
successors, its assigns, and every successor-in-interest to the Site that Grantee, such successors
and such assigns, shall not develop, operate, maintain or use the Site in violation of the terms and
conditions of the DDA, this Deed and the Redevelopment Plan (unless expressly waived in
writing by Grantor) for the tern of the Redevelopment Plan; provided that, however, the
covenants contained in Sections 7 and 8 shall remain in effect in perpetuity.
4. Right of Re-Entry Prior to Completion. Grantee covenants by and for itself and
any successors-in-interest that Grantor shall have the right, at its option, to reenter and take
possession of the Site hereby conveyed, with all improvements thereon, and re-vest in Grantor
the estate conveyed to the Grantee, if after Closing and prior to recordation of the Certificate of
Completion, Grantee or successor-in-interest shall commit a material default as described in
Section 705 of the DDA. Pursuant to Section 705 of the DDA, Grantor's right to re-enter,
repossess, tenninate, and re-vest shall be subordinate to and subject to and be limited by, and
shall not defeat, render invalid, or limit (1) any mortgage, deed of trust, or other security interests
permitted by the DDA, or (2) any rights or interest provided in the DDA for the protection of
holders of such mortgages, deeds of trust, or other security interests.
5. Reservation of Existing Streets. Grantor excepts and reserves any existing street,
proposed street, or portion of any street or proposed street lying outside the boundaries of the
Site which might otherwise pass with a conveyance of the Site.
6. Transfer Restrictions. Grantee covenants that prior to the recordation of the
Certificate of Completion, Grantee shall not transfer the DDA, the Site or any of its interests
therein except as provided in Section 303 of the DDA. [INSERT AWL RESTRICTIONS.]
7. Non-Discrimination. Grantee covenants that there shall be no discrimination
against, or segregation of, any persons, or group of persons, on account of race, color, creed,
religion, sex, marital status, age, ancestry, or national origin in the rental, sale, lease, sublease,
transfer, use, occupancy, or enjoyment of the Site, or any portion thereof, nor shall Grantee, or
any person claiming under or through Grantee, establish or permit any such practice or practices
of discrimination or segregation with reference to the selection, location, number, use, or
ATTACHMENT NO. 5
2005 VIP MOTORS DDA
Page 2 of 2
n I nna mn i 9 rzaoov na
occupancy of tenants, lessees, subtenants, sublessees, or vendees of the Site or any portion
thereof. The nondiscrimination and non-segregation covenants contained herein shall remain in
effect in perpetuity.
8. Form of Nondiscrimination Clauses in Agreements. Grantee shall refrain from
restricting the rental, sale, or lease of any portion of the Site on the basis of race, color, creed,
religion, sex, marital status, age, ancestry, gender or national origin of any person. All such
deeds, leases, or contracts shall contain or be subject to substantially the following
nondiscrimination or non segregation clauses:
(a) Deeds: In deeds the following language shall appear: "The grantee herein
covenants by and for itself, its heirs, executors, administrators and assigns, and all
persons claiming under or through them, that there shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion,
sex, marital status, age, ancestry, gender or national origin in the sale, lease, rental,
sublease, transfer, use, occupancy, tenure, or enjoyment of the land herein conveyed, nor
shall the grantee itself, or any persons claiming under or through it, establish or permit
any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees,
or vendees in the land herein conveyed. The foregoing covenants shall run with the
land."
(b) Leases: In leases the following language shall appear: "The lessee herein
covenants by and for itself, its heirs, executors, administrators, successors and assigns,
and all persons claiming under or through them, and this lease is made and accepted upon
and subject to the following conditions:
"That there shall be no discrimination against or segregation of any person or
group of persons on account of race, color, creed, religion, sex, marital status, age,
ancestry, gender or national origin in the leasing, subleasing, renting, transferring, use,
occupancy, tenure, or enjoyment of the land herein leased nor shall the lessee itself, or
any person claiming under or through it, establish or permit any such practice or practices
of discrimination or segregation with reference to the selection, location, number, use, or
occupancy of tenants, lessees, sublessees, subtenants, or vendees in the land herein
leased."
(c) Contracts: In contracts pertaining to conveyance of realty the following
language shall appear: "There shall be no discrimination against or segregation of any
person or group of persons on account of race, color, creed, religion, sex, marital status,
age, ancestry, gender or national origin in the sale, lease, rental, sublease, transfer, use,
occupancy, tenure, or enjoyment of the land, nor shall the transferee itself, or any person
claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or
occupancy of tenants, lessees, subtenants, sublessees, or vendees of the land."
The foregoing covenants shall remain in effect in perpetuity.
ATTACHMENTNO 5
2005 VIP MOTORS DDA
Page 3 of 3
n1nnamn17renao1 na
9. Mortgage Protection. No violation or breach of the covenants, conditions,
restrictions, provisions or limitations contained in this Deed shall defeat or render invalid or in
any way impair the lien or charge of any mortgage, deed of trust or other financing or security
instrument permitted by and approved by Grantor pursuant to the DDA; provided, however, that
any successor of Grantee to the Site shall be bound by such remaining covenants, conditions,
restrictions, limitations and provisions, whether such successor's title was acquired by
foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise. The foregoing shall limit any
rights of holders of any mortgage, deed of trust, or other financing or security instrument set
forth in the DDA.
10. Covenants to Run With the Land. The covenants contained in this Deed shall be
construed as covenants running with the land and not as conditions which might result in
forfeiture of title, and shall be binding upon Grantee, its heirs, successors and assigns to the Site,
whether their interest shall be fee, easement, leasehold,beneficial or otherwise.
IN WITNESS WHEREOF, Grantor and Grantee have caused this instrument to be
executed on their behalf by their respective officers or agents hereunto as of the date first above
written.
"GRANTOR":
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
Date: By:
Chair
ATTEST:
By:
Agency Secretary
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
By:
David J. Aleshire, Special Agency
Counsel
By its acceptance of this Deed, Grantee hereby agrees as follows:
1. Grantee expressly understands and agrees that the terms of this Deed shall be
deemed to be covenants running with the land and shall apply to all of the Grantee's successors
and assigns (except as specifically set forth in the Deed).
ATTACHMCNTNO 5
2005 VIP MOTORS DDA
Page 4 of 4
n i nnvmm onnam na
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
On before me, personally
appeared
personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
ATTACHMENTNO. 5
2005 VIP MOTORS DDA
Page 6 of 6
ninmmn»ian000 na
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
On before me, personally
appeared
personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
ATTACHMPNTNO 5
2005 VIP MOTORS DDA
Page 7 of 7
m nnz mn i o/1de09 na
DRAFT
ATTACHMENT NO. 6
2005 VIP MOTORS DDA
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Community Redevelopment Agency of the City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: Executive Director
(Space Above This Line for Recorder's Office Use Only)
CERTIFICATE OF COMPLETION
WHEREAS, by that certain 2005 Disposition and Development Agreement
("Agreement") dated , by and between the COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate
and politic ("Agency"), and VIP MOTOR CARS, LTD, a California corporation, wholly owned
by VIP MOTOR CARS ACQUISITION, INC., a California corporation (collectively "Dealer")
and PARTNER LAND DEVELOPMENT, LLC, an Arkansas LLC ('Developer"), Developer
has agreed to develop that certain real property situated in the City of Palm Springs, California,
described on Exhibit "A" attached hereto and made a part hereof; and
WHEREAS, as referenced in the Agreement, Agency shall furnish Developer with a
Certificate of Completion upon completion of constriction and development, which certificate
shall be in such form as to permit it to be recorded in the Official Records of the County
Recorder of the County of Riverside, California; and
WHEREAS, the Agreement provided for certain covenants to run with the land, which
covenants were incorporated in the Deed (as defined in the Agreement) or in that certain
Declaration of Covenants, Conditions and Restrictions recorded as Instrument No. of
the Official Records of the Riverside County Recorder('Declaration"); and
WHEREAS, this Certificate of Completion shall constitute a conclusive detennination by
Agency of the satisfactory completion by Developer of the constriction and development
required by the Agreement and of Developer's fall compliance with the terms of the Agreement
with respect to such construction and development, but not of the Deed nor of the Declaration,
the provisions of which shall continue to nm with the land pursuant to their terms; and
WHEREAS, Agency has conclusively determined that the construction and development
on the real property described in Exhibit "A" required by the Agreement has been satisfactorily
completed by Developer in full compliance with the terns of the Agreement.
ATTACHMENT NO. 6
2005 VfP MOTORS DDA
Page 1 of 1
ni MIMI11cnao1 nn
DRAFT
NOW, THEREFORE,
1. The improvements required to be constructed have been satisfactorily completed
in accordance with the provisions of said Agreement.
2. This Certificate of Completion shall constitute a conclusive determination of
satisfaction of the agreements and covenants contained in the Agreement with respect to the
obligations of the Developer, and its successors and assigns, to construct the improvements and
the dates for the beginning and completion thereof.
3. This Certificate of Completion shall not constitute evidence of Developer's
compliance with the Deed or the Declaration, the provisions of which shall continue to run with
the land.
4. This Certificate of Completion shall not constitute evidence of compliance with or
satisfaction of any obligation of the Developer to any holder of a mortgage or any insurer of a
mortgage securing money loaned to finance the improvements or any part thereof.
5. This Certificate of Completion is not a Notice of Completion as referred to in
California Civil Code Section 3093.
6. Except as stated herein, nothing contained in this instrument shall modify in any
way any other provisions of the Agreement or any other provisions of the documents
incorporated therein.
IN WITNESS WHEREOF, the Agency has executed this Certificate of Completion this
day of
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM
SPRINGS
By:
Chair
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
ALESHIRE &WYNDER, LLP
David J. Aleshire, Special Agency Counsel
ATTACHMENT NO. 6
2005 VIP MOTORS DDA
Page 2 of 2
n i nna Mn I v na000 na
DRAFT
CONSENT TO RECORDATION
PARTNER LAND DEVELOPMENT, LLC, an Arkansas corporation, ("Developer")
defined herein and the owner of the fee title to the real property legally described herein, hereby
consents to the recordation of this Certificate of Completion against the real property legally
described herein.
"DEVELOPER"
PARTNER LAND DEVELOPMENT, LLC
By:
Date: Its:
By:
Its:
ATTACHMENT NO 6
2005 VIP MOTORS DDA
Page 3 of 3
n 1 AMInA I9/1AQQ9 nA
DRAFT
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
On the day of 2005, before me, the
undersigned, a Notary Public, in and for said State and County, personally appeared
, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed the within
instrument a public
body, corporate and politic therein named, and acknowledged to me that such corporation
executed the within instrument pursuant to its bylaws or a resolution of its board of directors.
WITNESS my hand and official seal.
Signature of Notary
(SEAL)
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
On 2005, before me, personally
appeared personally known to me OR proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
signature of Notary
[SEAL]
ATTACHMENT NO. 6
2005 VIP MOTORS DDA
Page 4 of 4
n i nnvnn t I/1d0n9 na
DRAFT
ATTACHMENT NO. 7
2005 VIP MOTORS DDA
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Community Redevelopment Agency
of the City of Palm Springs
P.O. Box 2743
Palm Springs, CA 92263
Attn: Executive Director
(For Recorder's Use Only)
DECLARATION OF COVENANTS, CONDITIONS,
AND RESTRICTIONS
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
("Declaration") is made this _ day of , 2005 by and among VIP MOTOR
CARS, LTD, a California corporation, wholly owned by VIP MOTOR CARS ACQUISITION,
INC., a California corporation (collectively "Dealer") and PARTNER LAND DEVELOPMENT,
LLC an Arkansas corporation ('Developer'; Developer and Dealer are collectively referred to as
'Declarant"), THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM
SPRINGS, CALIFORNIA, a public body, corporate and politic ("Agency'), and THE CITY OF
PALM SPRINGS, a municipal corporation("City").
RECITALS:
I. Declarant is the fee owner of that certain real property located in the City of Palm
Springs, Comity of Riverside, State of California more particularly described on
Exhibit "1" attached hereto and incorporated herein by reference ("Site").
2. The Site is within the Merged Redevelopment Project Area No. 1 ('Project Area")
specifically described in the Redevelopment Plan for the Project Area which was
approved and adopted by the City Council of the City of Palm Springs by
Ordinance No. on, and as subsequently amended by means
of ordinances of the City Council.
3. The Agency and the City have fee or easement interests in various streets,
sidewalks and other property within the City and are responsible for the planning
and development of land within the City in such a manner so as to provide for the
health, safety and welfare of the residents of the City. That portion of the
ATTACHMENTNO. 7
2005 VIP MOTORS BOA
1
01003/0012/34992.04
DRAFT
Agency's or City's interest in real property most directly affected by this
Agreement is depicted in Exhibit "2" attached hereto and incorporated herein by
reference ("Public Parcel").
4. The purpose of the Redevelopment Plan is to remedy and alleviate blighted
conditions associated with undeveloped and unproductive land, inadequate street
and circulation systems, unsuitable land mixes, inadequate or total lack of public
street improvements, and the existence of substandard and incompatible uses and
structures. The redevelopment and restriction of the Site in accordance with the
Redevelopment Plan will promote the utility and value of the Site and of the
Project Area, for the benefit of its future owners and the entire City.
5. Pursuant to the Redevelopment Plan, Declarant has entered into a Disposition and
Development Agreement ("Agreement") with the Agency which Agreement
places certain restrictions on the Site. Pursuant to the City's development
requirements, the City has approved or will approve a site plan for the
development of the Site ("Site Plan"), which plan places certain restrictions on the
Site. Said Redevelopment Plan, the Agreement and Site Plan (i) are on file and
may be reviewed in the office of the executive director of the Agency("Executive
Director"), in the Palm Springs City Hall and (ii) are each incorporated herein by
this reference and made a part hereof as though fully set forth herein.
6. Declarant, the Agency and City intend, in exchange for the entering into the
Agreement by the Agency and the approval of the Site Plan by City, that the
Declarant, its successors and assigns hold, sell, and convey the Site subject to the
covenants, conditions, restrictions, and reservations set forth in this Declaration
and that the Agency and City shall have the right and power to enforce the
covenants, conditions, restrictions, and reservations as provided herein.
7. Declarant desires to establish and grant certain covenants, conditions and
restrictions upon the Site for the benefit of the Agency and the City and their
respective successors and assigns for the purpose of enhancing and protecting the
value, desirability and attractiveness of the Site and effectuating the
Redevelopment Plan. Such covenants, conditions and restrictions shall run to the
benefit of the Public Parcel and bind the Site, the Declarant and its successors and
assigns.
NOW, THEREFORE, the Declarant, Agency and City declare, covenant and agree, by
and for themselves, their heirs, executors and assigns, and all persons claiming under or through
them that the Site shall be held, transferred, encumbered, used, sold, conveyed, leased and
occupied subject to the covenants and restrictions hereinafter set forth, which covenants are
established expressly and exclusively for the use and benefit of the Agency and City.
ATTACHMENT NO. 7
2005 VIP MOTORS DDA
2
0t003/0012/34992.04
DRAFT
TERMS AND CONDITIONS
ARTICLE 1
COVENANTS, CONDITIONS AND RESTRICTIONS
a) General. The Site shall be developed and used only as pennitted by the
restrictions contained in the Site Plan, Redevelopment Plan and the Agreement.
b) Use. Developer acknowledges and agrees it may only use the Site for automobile,
truck, or other vehicle dealership and related purposes, consistent with the terns, covenants and
conditions as set forth in the Agreement and the CC&Rs; provided that with Agency's approval,
which approval shall not be unreasonably withheld, Developer may change the use of the Site.
In considering whether to grant approval, Agency may consider those factors set forth in Section
303 of the Agreement. Developer's fleet sales and vehicle leases shall be made from the Site to
maximize sales tax return to the City of Palm Springs (but this shall not require payment of sales
or use taxes on out-of-state business if not required by State law). In general, Developer shall
operate the business conducted by it on the Site in a prudent manner, exercising customary
business practices and hours of operation, to maximize sales and enhance the reputation and
attractiveness of the Site.
c) Maintenance Agreement. Declarant, for itself and its successors and assigns,
hereby covenants and agrees to be responsible for the following:
i) Maintenance and repair of the Site and all related on-site improvements,
easements, rights-of-way and landscaping thereon at its sole cost and expense, including,
without limitation, buildings, parking areas, lighting, signs and walls, in a first class
condition and repair, free of rubbish, debris and other hazards to persons using the same,
and in accordance with all applicable laws, rules, ordinances and regulations of all
federal, state, and local bodies and agencies having jurisdiction over the Site. Such
maintenance and repair shall include, but not be limited to, the following: (i) sweeping
and trash removal; (ii) the care and replacement of all shrubbery, plantings, and other
landscaping in a healthy condition, or the replacement of damaged or dying landscaping
with equivalent landscaping materials of then-comparable size and maturity; and (iii) the
repair, replacement and re-striping of asphalt or concrete paving using the same type of
material originally installed, such that the paving is at all times kept in a level and smooth
condition.
ii) Maintenance of the Site in such a manner as to avoid (i) the reasonable
determination of a duly authorized official of the Agency or City that a public nuisance
has been created by the absence of adequate maintenance such as to be detrimental to the
public health, safety or general welfare or (ii) a condition of deterioration or disrepair
ATTACHMENT NO. 7
2005 VIP MOTORS DDA
3
01003/0012/34992.04
DRAFT
which causes appreciable harm or is materially detrimental to property or improvements
within one thousand (1,000) feet of such portion of the Site.
c) Parking and Driveways. Declarant shall be responsible for assuring that the
driveways and traffic aisles on the Site be kept clear and unobstructed at all times. No vehicles
or other obstruction shall project into any of such driveways or traffic aisles. Vehicles associated
with the operation of the Site, including delivery vehicles, vehicles of employees and vehicles of
persons with business on the Site shall park solely on the Site and shall not park on streets or
adjacent property.
d) Other Rights of City. In the event of any violation or threatened violation of any
of the provisions of this Declaration, then, in addition to, but not in lieu of, any of the rights or
remedies the City may have to enforce the provisions hereof, the City shall have the right to
withhold or revoke, after giving written notice of said violation, any building permits, occupancy
permits, certificates of occupancy, business licenses and similar matters or approvals pertaining
to the Site or any part thereof or interests therein as to the violating person or one threatening
violation.
e) No City Liability. The granting of a right of enforcement to the City does not
create a mandatory duty on the part of the City to enforce any provision of this Declaration. The
failure of the City to enforce this Declaration shall not give rise to a cause of action on the part of
any person. No officer or employee of the City shall be personally liable to the Declarant, its
successors, transferees or assigns, for any default or breach by the City under this Declaration.
f) Compliance With Ordinances. Declarant shall comply with all ordinances,
regulations and standards of the City and Agency applicable to the Site. Declarant shall comply
with all rules and regulations of any assessment district of the City with jurisdiction over the
Site.
g) Outside Storage. Other than the storage of vehicles for sales and lease, trash or
other storage in any outside storage areas approved by the Agency or as required by law, no
storage of any kind shall be permitted outside the building(s) located on the Site. Adequate trash
enclosures shall be provided and screened. Locations of such areas and types of screening must
be approved by the Executive Director and, where applicable, the City. Gates for trash storage
area shall be kept closed at all times except when in actual use.
h) Buildings and Equipment. Any construction, repair, modification or alteration of
any buildings, equipment, structures or improvements on the Site shall be subject to the
following restrictions:
i) All mechanical and electrical fixtures and equipment to be installed on
the roof or on the ground shall be adequately and decoratively screened. The screening
must blend with the architectural design of the building(s). Equipment on the roof must
be at least six (6) inches lower than the parapet line and adequately screened. All details
ATTACHMENTNO. 7
2005 VIP MOTORS DDA
4
01003/0012/34992.04
DRAFT
and materials of said screening shall be approved by the Executive Director prior to
installation.
ii) The texture, materials and colors used on the buildings, as well as the
design, height, texture and color of fences and walls shall be subject to the approval of
the Executive Director.
iii) Signs on the Site shall conform to the standards and ordinances of the
City and to a umiform design theme approved by the City. Any signs installed on the Site
shall confonn to said design scheme and shall be approved by the Executive Director
prior to installation.
iv) Lights installed on the building shall be a decorative design. No lights
shall be permitted which may create any glare or have a negative impact on the
residential areas, if any, existing around the Site. No light stand on any portion of the
Site shall be higher than fifteen (15) feet. The design and location of any lights shall be
subject to the approval of the Executive Director.
v) No fences, signs, gas pumps, or any other similar facilities shall be
constructed or provided on the Site without the prior approval of the Executive Director.
vi) Manufacturing plant use may be permitted on the Site, subject to the
limitations provided in the Municipal Code of the City. Specifically, prior to such use,
suitable evidence must be provided to the Executive Director that no negative
environmental effect shall be caused by reason of odor, noise, glare, vibration, f tunes,
smoke, particulate matter, refuse matter, and that no unsafe or dangerous conditions are
to be created such as the manufacture, use or storage of explosive, radioactive materials
or other similarly hazardous materials.
i) Public Agencv Rights of Access. Participant hereby grants to the Agency, the
City and other public agencies the right, at their sole risk and expense, to enter the Site or any
part thereof at all reasonable times with as little interference as possible for the purpose of
constriction, reconstruction, relocation, maintenance, repair or service of any public
improvements or public facilities located on the Site. Any damage or injury to the Site or to the
improvements constructed thereon resulting from such entry shall be promptly repaired at the
sole expense of the public agency responsible for the entry.
ARTICLE 2
ENFORCEMENT
a) Termination. No breach of this Declaration shall entitle any party to cancel,
rescind or otherwise terminate this Declaration, or excuse the performance of such party's
obligations hereunder; provided that, however, this limitation shall not affect in any manner any
other rights or remedies which the parties may have by reason of such breach.
ATTACHMENTNO 7
2005 VIP MOTORS DDA
5
01003/0012/34992 04
DRAFT
b) Iniunction. Notwithstanding anything contained herein to the contrary, in the
event of any violation or threatened violation of any of the terms, covenants, restrictions and
conditions contained herein, in addition to the other remedies herein provided, the parties hereto
shall have the right to enjoin such violation or threatened violation in a court of competent
jurisdiction.
c) Other Rights of Agency and City. In the event of any violation or threatened
violation of any of the provisions of this Declaration, then in addition to, but not in lieu of, any of
the rights or remedies the Agency and City may have to enforce the provisions hereof, the
Agency and City shall have the right (i) to enforce the provisions hereof as a party hereto and as
an owner of the Public Parcel, and (ii) to withhold or revoke, after giving written notice of said
violation, any building permits, occupancy permits, certificates of occupancy, business licenses
and similar matters or approvals pertaining to the Site or any part thereof or interests therein as to
the violating person or one threatening violation.
d) Failure to Perform; Lien. If any owner of the Site defaults on the performance of
any of its obligations hereunder, the Agency or City, their employees, contractors and agents
may, at their sole option, and after making reasonable demand of the owner of the Site that it
cure said default, enter onto the Site for the purpose of curing the default. In making an entry,
the Agency or City shall give the owners of the Site, or their representative, reasonable notice of
the time and manner of said entry and said entry shall only be at such times and in such marmers
as is reasonably necessary to carry out this Agreement. hi such event, the owner of the Site shall
reimburse the Agency or City for all costs and expenses related to the curing of said default. If
the Agency or City is not reimbursed for such costs by the owner of the Site within 30 days after
giving notice thereof, the same shall be deemed delinquent, and the amount thereof shall bear
interest thereafter at a rate of ten percent (10%) per annum until paid. Any and all delinquent
amounts, together with said interest, costs and reasonable attorneys' fees shall be a personal
obligation of the owner of the Site as well as a lien and charge, with power of sale, upon the Site.
The Agency may bring an action at law against the owner of the Site to pay any such surns.
The lien provided for in this Section may be recorded by the Agency as a Notice of Lien
against the Site in the Office of the County Recorder, County of Riverside, signed and
acknowledged, which Notice of Lien shall contain a statement of the unpaid amount of costs and
expenses. The priority of such lien when so established against the Site shall date from the date
such notice is filed of record and shall be prior and superior to any right, title, interest, lien or
claim which may be or has been acquired or attached to such real property at the time of
recording of such lien,but shall be junior and subordinate to matters having a priority prior-to the
date such notice is recorded; provided that, however, said lien shall be subordinate to any bona
fide mortgage or deed of trust and any purchaser at any foreclosure or trustee's sale under any
such bona fide mortgage or deed of trust as provided in Section 3.3 below. Such lien shall be for
the use and benefit of the person filing the sarne, and may be enforced and foreclosed in a suit or
action brought in any court of competent jurisdiction. Any such lien maybe enforced by the
Agency or City by taking either or both of the following actions concurrently or separately (and
by exercising either of the remedies set forth below shall not prejudice or waive its rights to
exercise the remedy): (i) bring an action at law against the defaulting party personally obligated
ATTACHMENTNO 7
2005 VIP MOTORS DDA
6
! 01003/0012134992.04
DRAFT
to pay such lien or (ii) foreclose such lien in accordance with the provisions of Section 2924 of
the California Civil Code applicable to the exercise of powers of sale or mortgages and deeds of
trust, or any other manner permitted by California law.
Upon the timely curing of any default for which such lien was recorded, the City or
Agency shall record an appropriate release of such lien, and sign any other documents
reasonably necessary to satisfy title insurance requirements, upon payment by the owner of the
Site of a reasonable fee to cover the costs of preparing and recording such release, together with
the payment of such other costs, including without limitation, reasonable attorneys fees, court
costs, interest or other fees which have been incurred.
ARTICLE 3
ENCUMBRANCES, MORTGAGE PROTECTION AND TAXES
a) Participant's Breach Not to Default Mortgage Lien. Declarant's breach of any of
the covenants or restrictions contained in this Declaration or the Agreement shall not defeat or
render invalid the lien of any mortgage or deed of trust made in good faith and for value as to the
Site or any part thereof or interest therein, whether or not said mortgage or deed of trust is
subordinated to this Declaration or the Agreement; but, unless otherwise herein provided, the
terns, conditions, covenants, restrictions and reservations of this Declaration and the Agreement
shall be binding and effective against the holder of any such mortgage or deed of trust and any
owner of any of the Site or any part thereof whose title thereto is acquired by foreclosure,
trustee's sale, or otherwise.
b) Amendments or Modifications to Declaration. No purported rule, regulation,
modification, amendment and/or termination of this Declaration or the Agreement shall be
binding upon or affect the rights of any mortgagee holding a mortgage or deed of trust upon the
Site that is recorded in the Office of the Riverside County Recorder prior to the date any such
rule, regulation, modification, amendment or termination is recorded in such office, without the
prior written consent of such mortgagee.
c) Liens Subordinate. Any monetary lien provided for herein shall be subordinate to
any bona fide mortgage or deed of trust covering an ownership interest or leasehold or
subleasehold estate in and to the Site and any purchaser at any foreclosure or trustee's sale (as
well as any by deed or assignment in lieu of foreclosure or trustee's sale) under any such
mortgage or deed of trust shall take title free from any such monetary lien, but otherwise subject
to the provisions hereof, provided that, after the foreclosure of any such mortgage and/or deed of
trust, all other assessments provided for herein to the extent they relate to the expenses incurred
subsequent to such foreclosure, assessed hereunder to the purchaser at the foreclosure sale, as
owner of the Site after the date of such foreclosure sale, shall become a lien upon the Site and
may be perfected and foreclosed as provided in Section 2(d).
d) Payment of Taxes and Assessments. Declarant shall pay, when due, all real estate
taxes and assessments assessed or levied against the Site. Nothing herein contained shall be
ATTACHMENT NO 7
2005 VIP MOTORS DDA
7
01003/0012/34992.04
DRAFT
deemed to prohibit Declarant from contesting the validity or amounts of any tax or assessments
nor to limit the remedies available to Declarant with respect thereto.
ARTICLE 4
COVENANTS TO RUN WITH THE LAND
a) Covenants Running With the Land. This Declaration is designed to create
equitable servitudes and covenants appurtenant to the Public Parcel and running with the Site.
Declarant hereby declares that all of the Site shall be held, sold, conveyed, encumbered,
hypothecated, leased, used, occupied and improved subject to these covenants, conditions,
restrictions and equitable servitudes, all of which are for the purposes of uniformly enhancing or
protecting the value, attractiveness and desirability of the Site and effectuating the
Redevelopment Plan. The covenants, conditions, restrictions, reservations, equitable servitudes,
liens and charges set forth herein shall: (i) rum with the Site, (ii) be binding upon all persons
having any right, title or interest in the Site, or any part thereof, their heirs, successive owners
and assigns, (iii) inure to the benefit of every portion of the Public Parcel and any interest
therein, (iv) inure to the benefit of the Agency, City and their successors and assigns and
successors in interest, (v) shall be binding upon Declarant, its successors and assigns and
successors in interest, and(vi) may be enforced by the Agency and City.
Agency and Declarant hereby declare their understanding and intent that the burden of
the covenants set forth herein touch and concern the land in that Declarant's legal interest in the
Site is rendered less valuable thereby. Agency and Declarant hereby further declare their
understanding and intent that the benefit of such covenants touch and concern the land by
enhancing and increasing the enjoyment and use of the Site by the citizens of the City and by
furthering the public purposes for which the Agency was formed.
b) Agreement Among Declarant, Agencv and City. The Declarant, in exchange for
the Agency entering into the Agreement the City's approval of the Site Plan, hereby agrees to
hold, sell, and convey the Site subject to the covenants, conditions, restrictions and reservations
of this Declaration. Declarant also grants to the Agency and City the right and power to enforce
the covenants, conditions, restrictions and reservations contained in this Declaration against the
Declarant and all persons having any right, title or interest in the Site, or any part thereof, their
heirs, successive owners and assigns.
ARTICLE 5
TERM
The covenants, conditions and restrictions contained in this Declaration shall remain in
effect for the term of the Redevelopment Plan.
ATTACHMENTNO 7
2005 VIP MOTORS DDA
I
I 8
I
I 01003/0012/34992.04
DRAFT
ARTICLE 6
MISCELLANEOUS
a) Modification. This Declaration may not be modified, terminated or rescinded, in
whole or in part, except by a written instrument duly executed and acknowledged by the parties
hereto, their successors or assigns, and duly recorded in the Office of the County Recorder,
County of Riverside.
b) Amendments. Any amendment to any provision of this Article or to any other
provisions of this Declaration enforceable by the City shall require the prior written consent of
the City.
c) Governing Law. This Declaration shall be governed by and construed in
accordance with the laws of the State of California.
d) Severability. The invalidity or unenforceability of any provision of this
Declaration with respect to a particular party or set of circumstances shall not in any way affect
the validity and enforceability of any other provision hereof, or the same provision when implied
to another party or to a different set of circumstances.
e) Notices. Any notice to be given under this Declaration shall be given by personal
delivery or by depositing the same in the United States Mail, certified or registered, postage
prepaid, at the following address:
Agency: The Community Redevelopment
Agency of The City of Palm Springs
P.O. Box 2743
Palm Springs, CA 92263
Attn: Executive Director
City: City of Palm Springs
P.O. Box 2743
Palm Springs, CA 92263
Attn: City Manager
With Copy to: City of Pahn Springs
P.O. Box 2743
Palm Springs, CA 92263
Attn: City Attorney
Declarant: Partner Land Development
11300 Rodney Purhain Road, Suite 300
Little Rock, AK 72212
Attn:
ATTACHMENT NO. 7
2005 VIP MOTORS DDA
9
01003/0012/34992.04
DRAFT
With Copy to: VIP Motor Cars, LTD
11300 Rodney Purham Road, Suite 300
Little Rock, AK 72212
Attn: Jerry Johnson
Any notice delivered personally shall be effective upon delivery. Any notice given by
mail as above provided shall be effective forty-eight (48) hours after deposit in the snails. Any
party may change address for notice by giving written notice of such change to the other party.
f) Counterparts. This Declaration may be executed in any number of counterparts
each of which shall be an original but all of which shall constitute one and the same document.
ATTACHMENTNO 7
j 2005 VIP MOTORS DDA
10
01003/0012/34992.04
DRAFT
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
"Declarant"
"DEVELOPER"
PARTNER LAND DEVELOPMENT, LLC,
an Arkansas corporation
By:
Its:
By:
Its:
"DEALER"
VIP MOTOR CARS, LTD, a California
corporation, wholly owned by VIP MOTOR
CARS ACQUISITION, INC., a California
corporation
By:
Its:
By:
Its:
"Agency"
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS,
CALIFORNIA, a public body, corporate and politic
By: By:
Assistant Secretary Chairman
ATTACHMENT NO. 7
2005 VIP MOTORS DDA
I1
0100310012/34992.04
DRAFT
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me, personally
appeared
personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me, personally
appeared
personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
ATTACHMENTNO 7
2005 VIP MOTORS DDA
13
0100310012/34992.04
OF PALM Sp .
'N City of Palm Springs
* * Office of the City Clerk
* �CORPORA1 0,9A * 3200 Tahqu¢z Canyon Way• Palm Springs,Califoinia 92262
Cq[/FO RN�P TEL:(760)323-8204 •TDD:(760)364-9527
NOTICE OF CONTINUANCE
NOTICE IS HEREBY GIVEN that the regular adjourned meeting of June 29, 2005, Joint
Public Hearing Item No. RA3
APPROVAL OF A DISPOSITION AND DEVELOPMENT AGREEMENT WITH
VIP MOTOR CARS, INC., AND PARTNER LAND DEVELOPMENT, LLC, AN
ARKANSAS LIMITED LIABILITY CORPORATION, FOR THE DISPOSITION OF
A 8-ACRE PARCEL, MERGED REDEVELOPMENT PROJECT AREA 1
was continued to July 6, 2005, 6:00 p.m., Council Chamber, 3200 East Tahquitz
Canyon Way, Palm Springs, California.
I, James Thompson, City Clerk of the City of Palm Springs, California certify this Notice of
Continuance was posted at or before 5:00 p.m., June 30, 2005, as required by Qstablished
policies and procedures. /
JAMES THOMPSON
City Clerk
H1USERS\C-CLK\Agenda Preparation\07-06-05\PH Notice of Continuance RA3 VIP.DOC
Post Office Box 2743 • Palm Springs, California 92263-2743