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6/2/2004 - AGREEMENTS
J Wessman dba Wessman Devlopment Owner Participation Agreement OPA Amend 1 Agreement A0478C Res 1295 12-07-05 _- AMENDMENT NO. 1 TO OWNER PARTICIPATION AGREEMENT THIS Amendment No. 1 to an OWNER PARTICIPATION AGREEMENT ("Agreement") is entered into this l tO day of C��� , 2005 by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic, whose offices are located at 3200 East Tahquitz Canyon Way, Palm Springs, California 92262 ("Agency") and John Wessman d/b/a Wessman Development Company, whose offices are located at 300 South Palm Canyon Drive, Palm Springs, California, 92262 ("Participant'). The Agency and the Participant hereby agree as follows: EXHIBIT C SCHEDULE OF PERFORMANCE Description Time Period Date 1. Participant submits Already completed. October 28, 2005 plans and drawings for the project to the City for application review 2. City issues a Within 30 days of formal On or before "completeness" letter to application. November 27, 2005 Participant 3. Participant cures any Within 30 days of receipt of On or before deficiencies in the Completeness Letter. December 27, 2005 application. 4. Project is reviewed by Within sixty (60) days of On or before January Architectural Advisory application being deemed 30, 2006 if there are Commission complete by the Director of no deficiencies in the Planning Services. application. 5. Developer revises and Within 30 days after The dates in this schedule resubmits plans, disapproval will be adjusted by the drawings, and additional time necessary to resubmit and review specifications, if disapproved plans. necessary 6. City reviews and Within 15 days after The dates in this schedule approves or disapproves resubmittal will be adjusted by the resubmitted plans, additional time necessary to resubmit and review drawings, and disapproved plans. specifications, if 1003/012/30897.02 necessary 5. Project receives its Within sixty (60) days of On or before January environmental application being deemed 30, 2006 if there are determination from the complete by the Director of no deficiencies in the Planning department Planning Services. application. (Environmental Assessment) 6. Environmental review of Within one hundred twenty On or before May 30, the project is complete, (120) days of completion of 2006 the Environmental Assessment. 7. Project is reviewed by Within forty-five (45) days of On or before July 15, Planning Commission. completion of draft 2006 environmental document. 8. Project is reviewed and Within 60 days of approval On or before environmental document by the Planning Commission, September 15, 2006 certified by City Council. 9. City files Notice of Notice period is 30 days. On or before October Determination of CEQA 15, 2006 action. 110. Participant submits Within 180 days of approval On or before construction documents by City Council. December 15, 2006 for Building Department review. 11. City reviews building Within 90 days of submittal On or before March plans and prepares to to the Building Department. 15, 2007 issue permit. 12. Developer obtains all On or before the date that is On or before March necessary permits and ten (10) days after the date 15, 2007 approvals City notifies Developer that City is prepared to issue building permits for the Project 12. Participant submits Within 90 days after approval On or before evidence of financing of Project by the City December 15, 2006 commitment for the Council. Project to Agency. 13. Agency approves or Within 30 days of receipt by On or before January disapproves financial Agency 15, 2007 commitment and lender 14. Participant commences Within 45 days of receiving On or before April 30, construction of the Notice from the City that it is 2007 Project. ready to issue building permits. 15 Participant completes Within 540 days of issuing On or before October construction on the building permits. 30, 2008 Project. 16. Participant requests final Within 15 clays of completing On or before inspection of the Project construction of the Project. November 15, 2008 by the City 17. Agency issues certificate Within ten (10) days of On or before of Completion for the written request by Developer, November 25, 2008 Site 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 tE:xt shall govern. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day first above written. "AGENCY" COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic ehairmm ATTEST: tdL.in APPROV AS TO FORM: ['LYry, r c ,Az� An Agency ounsel "DEVELOPER" John Wessman dba Wessman Development Company (Check�One: >lndividual, _partnership, _corporation) [NOTARIZEG Signature Print —gam Name. IUY�r� Print Title: `L1l.iJ Mailing Address: )PvW tDk((4 rj, CA gzz(oZ (Corporations require two signatures; one from each of the following: (A) Chairman of Board, President, any Vice President; AND (B) Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer.) [END OF SIGNATURES / NOTARY JURAT(S) FOLLOW] STATE OF CALIFORNIA ) ) ss. COUNTY OF ) ON before me, Notary Public, 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. "fitness my hand and official seal. [SEAL] Signature STATE OF CALIFORNIA ) ) ss. COUNTYOF {�cUrOZc�� ON DECC-iNN2SE-t- V -5 2Dd before me, LCj(-\ Notary Public, personally -jo+� q , appeared personally known to me (mr ornved+o e-the basi ee) to be the person(') whose name(°g) is/0e subscribed to the within instrument and acknowledged to me that he/W641t ey executed the same in his/br/th6v authorized capacity(LK), and that by 'hislhi�Er-/th it signatureO on the instrument the person(, or the entity upon behalf of which the person($) acted, executed the instrument. Wl tnessm-y hand-a d offici seal. [SEAL] Si na ire ° :, , g �_� y LESA M BgDNAR a' ' Comm H1547737 7. d Notary Public-0011Porno> Riverside County zi MY Commission Expires .•pmn„u uu uu c uor:.28,2009 uu: I ' {'''� � City f Palm Springs Y o am Office of the City Manager J �J� 3200 Tahqusz Canyon Way • Palm Spimgs,Calffam�a 92262 TEL.(760)323-8201 •PAX (760)323-8207 •TDD (760)864-9527 J.7J :Ir,r,;F F j, June 16, 2005 a h-i John Wessman ' Wessman Development Company —c 300 South Palm Canyon Drive Palm Springs, CA 92262 Dear John: As you discussed last week with John Raymond, the purpose of this letter is to grant an extension of your Owner Participation Agreement("OPA")with the Community Redevelopment Agency for the development of a boutique hotel for a period of six months. The Schedule of Performance (Exhibit "C"to the OPA) allows me, as Executive Director, to lengthen the time requirements by a cumulative six months. Therefore, Item 3. of the Schedule, "Architecture and PDD Approvals," shall now grant you "12 months [18 months from the execution date of this agreement]." Please realize that this extension exhausts my authority to lengthen the agreement. The Agreement was executed on June 2,2004: the new deadline for obtaining your entitlements and approvals under the Schedule is now December 2, 2005. As you know, any further amendment would require the Agency to approve an amendment to the OPA in a public meeting. This includes any substantial change to Exhibit"B,"Description of Project. My suggestion is that you submit the formal application as soon as it is ready in order to be as close to the entitlement as possible by December 2. As you know, staff is ready to get to work on this project. Please feel free to call me or John Raymond if you have any questions. Sincerely, David H. Ready City Manager CO: City Attorney Director of Community&Economic Development City Clerk Post Office Box 2743 0 Palm Springs, California 92263-2743 DOC " 2004-04GS45M 06/18/2004 08:00A Fee:NC Page 1 of 21 Recorded---M Official Records County of Riverside Gary L. Orso RECORDING REQUESTED BY: RIIslsessorl,I County Clerk & Retarder AND C TY OF PALM SPRINGS IWHEN RECORDED MAIL TO. Illflflllllllllflllllll4lllllllllllllllllllllllllllllll City of Palm Springs M S U PAGE SIZE DA PCOR NOCGR SMF We P. O.Box 2743 Palm Springs, CA 92263 Attn: City Clerk l/ Y" A R L HC.1LONG REBIND NCHG EXAM .. Owner Participation Agreement Title of Document THIS AREA F®j0Lx USE ONLY THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3.00 Additional Recording Pee Applies) o 9oEC0RDM\REC0RD.REQ Wessman Development Corp. Owner Participation Agreement T AGREEMENT #0478C CITY CLERK Res 1253, 6-2-04 (91Y OF PALM SPFUNO 90X2748 -- - --- - PALM 8PHI44S,G1 OM OWNER PARTICIPATION AGREEMENT THIS OWNER PARTICIPATION AGREEMENT ("Agreement") is entered into this 2nd day of June 2004, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic, whose offices are located at 3200 East Tahquitz Canyon Way, Palm Springs, California 92262 ("Agency")'and John Wessman dba Wessman Holdings LLC, a California limited liability corporation, whose offices are located at 1555 South Palm Canyon Drive, G-106, Palm Springs, California, 92264 ("Participant"). The Agency and the Participant hereby agree as follows: WHEREAS, this Agreement pertains to the development of certain property at the southwest corner of Tahquitz Canyon and Cahuilla Road (the "Site") which is owned by Participant; and WHEREAS, the parcel adjacent to the site to the south is known as the Winters Parcel, and the parcel to the south of the Winters Parcel is owned by Frank Tysen and Therese Hayes, and is occupied by a 23-room hotel known as Casa Cody; and WHEREAS, Participant has proposed the development of a hotel on the Site but believes the project could be enhanced by incorporating the Winters Parcel in the Project. Participant projects transient occupancy tax revenue to the City of $300,000 annually, as well as tax increment revenue to the Agency of$50,000 per year; and WHEREAS, Tysen would also like to incorporate the Winters Parcel in Casa Cody, and made an offer to acquire the Winters Parcel; and on December 12, 2003, entered into an escrow, #1123 at Liberty Escrow, to purchase the same; and WHEREAS, Agency has a first right of refusal to acquire the Winters Parcel pursuant to that certain agreement dated May 4, 1988, which Agency attempted to exercise after being informed of the Tysen offer; and WHEREAS, the parties believe that a compromise can be reached satisfactory to objectives of all parties by(i) the Agency entering this Agreement for the development of a hotel by Participant, (ii) assuring a more intense development by Participant by transferring development rights from the Winters Parcel (which has restricted development opportunity due to the existence of a historic structure), (iii) Tysen consenting to the hotel project, and (iv) the Agency withdrawing its effort to acquire the Winters Parcel so that Tysen can proceed with its acquisition. NOW, THEREFORE, the parties hereto agree as follows: 1. DEFINITIONS. 1.1. Cam. The tern "City" shall mean the CITY OF PALM SPRINGS, a chartered municipal corporation, having its offices at 3200 East Tahquitz Canyon Way, Palm Springs, California 92262. 1003/012/30897.02 I IIIIIII 111111 IIII IIIIIIIIIIIIIIIIIIIIII III IIIIIIIIIIIII 66 8©2 ofs08500R 1.2. Consent to Project. The teen "Consent to Project" shall mean that certain Consent attached hereto as Exhibit E and incorporated herein by this reference. 1.3. Executive Director. The term "Executive Director" shall mean the Executive Director of Agency. 1.4. Project. The term "Project" shall mean the hotel project to be constructed by the Participant upon the Site more particularly described on Exhibit "B" attached hereto and incorporated herein by reference. 1.5. Redevelopment Plan. The term "Redevelopment Plan" shall mean the Amended and Restated Redevelopment Plan for Merged Redevelopment Project Area No. 1 ("Project Area") as adopted by Ordinance No. 1584 of the City Council of City on May 31, 2000, as amended from time to time. A copy of the Redevelopment Plan is on file in the office of the City Clerk of the City. The Redevelopment Plan is incorporated herein by this reference and made a part hereof as though fully set forth herein. 1.6. Schedule of Perforinance. The term "Schedule of Performance" shall mean that certain Schedule attached hereto as Exhibit "C" and incorporated herein by reference. 1.7. Site or Property. The tern "Site" or 'Property" shall mean that certain real property owned by Participant located on North Palm Canyon Drive in the City of Palm Springs, State of California, more particularly described on Exhibit "A" attached hereto and incorporated herein by reference. 2. PURPOSE OF AGREEMENT. The purpose of this Agreement is to effectuate the Redevelopment Plan for the Project Area by developing the Site as a hotel within the Project Area. The development of the Site which is located within the Project Area, and the fulfillment generally of this Agreement are in m" the best interests of the City and the welfare of its residents and are in accordance with the public fl m purposes and provisions of applicable federal, state, and local laws and regulations, under which No o the Project has been undertaken and is being assisted. m The Palm Springs economy is based on tourism. It is therefore a farther purpose of this Agreement to add a unique, high class hotel to the City's hotel inventory to compliment and further expand the tourism industry. This will also assist the City's economics. With a projected C 48 rooms and 70 percent occupancy and rates averaging $250 per night, projected transient occupancy tax revenues exceed $300,000 and tax increment to the Agency exceeding $50,000 per year. Finally, it is a purpose of this Agreement to create a mechanism for the transfer of development rights from the Winters Parcel to the site. With Mr. Tysen's support for this concept, the Agency is willing to forego the exercise of its right of first refusal to acquire the Winters Parcel. Said support shall be evidenced by the Consent to Agreement attached hereto as TMM Exhibit E. C cae so (to -2- 1003/012/30897.02 3. CONSTRUCTION OF THE PROJECT. 3.1. Plans and Specifications. The Participant shall construct the Project upon the Site in accordance with construction drawings, working specifications and related documents that have been submitted to and approved by the Agency in advance and in writing according to the description in Exhibit "B". 3.2. Permits. Before commencement of construction of the Project, Participant shall obtain any and all permits and approvals which may be required by the City or any other governmental agency with jurisdiction. 3.3. Governmental Approvals. Notwithstanding anything herein contained to the contrary, it is expressly understood by the parties hereto that the Agency makes no representations or warranties with respect to the approvals required by any other governmental entity or with respect to approvals hereinafter required from the City or the Agency. NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, IT IS EXPRESSLY ACKNOWLEDGED THAT THE PROJECT WILL REQUIRE LAND-USE APPROVAL BY THE CITY AND NOTHING HEREIN, INCLUDING THE DESCRIPTION OF THE PROJECT IN EXHIBIT B AND THE APPROVAL OF THE AGREEMENT BY THE AGENCY, SHALL LIMIT THE DISCRETION OF THE CITY BY ITS PLANNING COMMISSION AND CITY COUNCIL TO APPROVE, CONDITIONALLY APPROVE OR DISAPPROVE THE PROJECT. The Agency reserves full police power authority over the Project and the Participant Q acknowledges that the City retains such full police power as well. Nothing in this Agreement shall be deemed to be a prejudgment or commitment with respect to such items nor to guarantee m" that such approvals or permits will be issued within any particular time or with or without any ma N� particular conditions. a,0 3.4. Costs of Construction. The, cost of constructing the Project shall be borne by the Participant. 3.5. Construction Schedule. Participant shall submit the construction drawings, working specifications and related documents for approval by the Agency on or before the date set forth in the Schedule of Performance. Construction of the Project shall commence on or before the date set forth in the Schedule of Performance and shall be completed within the time set forth in the Schedule of Performance except as mutually agreed in writing by Participant and Agency. The Project shall be deemed complete upon the issuance of a Certificate of Completion as provided in Section 3.8, or upon notification to the Participant by the Agency's Director of Community Development that rehabilitation of the Project is complete, whichever occurs first. cm 7 rr -3- 1003/012/30897.02 3.6. Rialit of Access. Representatives of Agency and City shall have the reasonable right of access to the Site during the period of construction for the purposes of this Agreement, including, but not limited to,the inspection of the work being performed. 3.7. Nondiscrimination During Construction. Participant, for itself and its successors and assigns, agrees that during the rehabilitation of the Project, Participant will not discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, marital status, ancestry or national origin. 3.8. Certificate of Completion. Upon written request by Participant, and upon satisfactory completion of the Project, Agency shall issue to Participant a Certificate of Completion. The Certificate of Completion shall be, and shall so state, a conclusive determination of satisfactory completion of the Project required by this Agreement, and a full compliance with the terms of this Agreement relating to commencement and completion of the Project. After the date Participant is entitled to issuance of the Certificate of Completion, and notwithstanding any other provision of this Agreement to the contrary, any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the Site shall not (because of any such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement, except that such party shall be bound by the covenants that survive the issuance of the Certificate of Completion, as set forth in the CC&RS. The Certificate of Completion is not a notice of completion as referred to in California Civil Code Section 3093, 3.9. Insurance and Indemnification. (a) Insurance. Prior to the commencement of any construction by Participant of the Project, Participant or its contractor for the work hereunder, shall procure and maintain in a form and content satisfactory to Agency, during the entire term of construction, the following policies of insurance: �m ON o (i) Comprehensive General Liability Insurance. A policy of NN comprehensive general liability insurance written on a per occurrence basis in an amount not less than either (i) a combined single limit of ONE MILLION DOLLARS ($1,000,000.00) or (ii) bodily injury limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) per person, ONE MILLION DOLLARS ($1,000,000.00) per occurrence and ONE MILLION DOLLARS ($1,000,000.00) products and completed operations and property damage limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) per occurrence and ONE MILLION DOLLARS ($1,000,000.00) in the aggregate. (ii) Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both the Participant, Agency and the City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Participant in the course of carrying out the work or services contemplated in this Agreement. (iii) Automotive Insurance. A policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount not less than either (i) bodily -4- 1003/012/30897.02 injury liability limits of $250,000.00 per person and $500,000.00 per occurrence and property damage liability limits of $100,000.00 per occurrence and $250,000.00 in the aggregate or (ii) combined single limit liability of $500,000.00. Said policy shall include coverage for owned, non-owned, leased and hired cars. (iv) Builder's Risk Insurance. A policy of "builder's risk" insurance covering the full replacement value of all of the improvements to be constructed by Participant pursuant to this Agreement. All of the above policies of insurance shall be primary insurance and shall name Agency, City, and their officers, employees and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against Agency, City, and their officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or cancelled without providing thirty (30) days prior written notice by registered mail to Agency and City. In the event any of said policies of insurance are cancelled, the Participant or its contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to the Executive Director. No work or services under this Agreement shall commence until the Participant has provided Agency with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by Agency. The policies of insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in 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 VII or better, unless such requirements are waived by the Risk Manager of the City("Risk Manager") due to unique circumstances. Participant shall provide in all contracts with contractors, subcontractors, architects and engineers that said contractor, subcontractor or engineer shall maintain the policies of insurance m required to be maintained pursuant to this Section. yeti ©mo The Participant agrees that the provisions of this Section shall not be construed as limiting in any way the extent to which the Participant may be held responsible for the payment of damages to any persons or property resulting from the Participant's activities or the activities of any person or persons for which the Participant is otherwise responsible. (b) Indemnification. During the period of construction of any of the improvements pursuant to this Agreement and until such time as is issued a Certificate of Completion for the Project, Participant agrees to and shall indemnify and hold the Agency and the City harmless from and against all liability, loss, damage, cost 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 the acts done thereon or any errors or omissions of the Participant or its agents, servants, employees or contractors. C (�C • -5- 1003/012/30897.02 4. USE OF TILE SITE. t Participant covenants and agrees that it shall devote the Site to hotel use which is consistent with the Redevelopment Plan,the applicable zoning restrictions, and this Agreement. 5. ENFORCEMENT. 5.1. Events of Default. In the event either party defaults in the performance or observance of any covenant, agreement or obligation set forth in this Agreement, and if such default remains uncured for a period of thirty (30) days after written notice thereof shall have been given by the non-defaulting party, or, in the event said default cannot be cured within said time period, the defaulting party has failed to commence to cure such default within said thirty (30) days and diligently prosecute said cure to completion, then the non-defaulting parry shall declare an event of default to have occurred hereunder. 5.2. Remedies. The Agency's sole remedy for Participant's violation of this Agreement shall be termination, in which case Participant shall have no further rights hereunder. Participant 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 Participant to speculate with land. i 5.3. No Waiver. 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 m 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 other default or of any orights or remedies or to deprive such party of its right to institute and maintain any actions or m proceedings which it may deem necessary to protect, assert or enforce any such rights or _ remedies. 5.4. Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by any party of one or more of 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 another party. 5.5. Attorneys' Pees. In the event,of litigation between the parties arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and other costs and expenses incurred in addition to whatever other relief to which it may be entitled. C, ♦/� -6- 10031012130897.02 6. MISCELLANEOUS. 6.1. Governing Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 6.2. Notices. Formal notices, demands, and communications between Agency, City and Participant shall be sufficiently given if personally delivered or dispatched by registered or certified mail, postage prepaid, return receipt requested, to the addresses set forth above. All notices shall be deemed to be received as of the earlier of actual receipt by the addressee thereof or the expiration of forty-eight (48) hours after depositing in the United States Postal System in the manner described in this Section. 6.3. Conflicts of Interest. No member, official, or employee of Agency shall have any personal interest, direct or indirect, in this Agreement nor shall any such member, official, or employee participate in any decision relating to this Agreement which affects his personal interests or the interests of any corporation, partnership, or association in which he is, directly or indirectly, interested. 6.4. Nonliability of Agency Officials and Employees. No member, official, employee, or consultant of Agency or City shall be personally liable to Participant, or any successor in interest of Participant, in the event of any default or breach by Agency or for any amount which may become due to Participant or to its successor, or on any obligations under the terns of this Agreement. 6.5. Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made by written instrument or endorsement thereon and in each such instance executed on behalf of each party hereto. m 6.6. Assurances to Act in Good Faith. Agency and Participant agree to ow execute all documents and instruments and to take all action and shall use their best efforts to accomplish the purposes of this Agreement. Agency and Participant shall each diligently and in good faith pursue the satisfaction of any conditions or contingencies subject to their approval. m 6.7, Severability. Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If, however, any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. 6.8. Force Majeure. The time within which Participant or the Agency shall be required to perform any act under this Owner Participation Agreement shall be extended by a period of time equal to the number of days dirring which performance of such act is delayed due to war, insurrection, strikes, lock-outs, riots, floods, earthquakes, fires, casualties, natural disasters, Acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, governmental restrictions on priority, initiative or referendum, moratoria, processing with governmental agencies other than City or Agency, unusually severe weather, or any other similar causes beyond the control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay -7- CN � � � / 1003/012/30997.02 and shall commence to run from the time of the commencement of the cause, if written notice by the parry claiming such extension is sent to the other party within thirty (M) days of knowledge of the commencement of the cause. Any act or failure to act on the part of a party shall not excuse performance by that party. m �m mmN mmo m Q N 1 N 0 !MMM CCae - 1z _O 1003/012/30897.02 IN WITNESS WHEREOF the Agency and Participant have executed this Agreement as of the date first written above. "AGENCY" COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic ATTEST: By: Ron Oden ssistant Secretary Patricia A. Sanders APPROVED BY VNE CC)p4"i.Fviltt AGINff BY RL no. APPROVED AS TO FORM: ALESHIRE &WYNDER, LLP `a,`1��11411 101 I f 1 (I . 1 i Dav d J. sire,Esq., Agency Counsel Sri m_, N t � y "PARTICIPANT" N© 9 J Wessman Holdings, LLC By:— Its: GUJi1Z21. John Esin By: Its: i3 -9- 1003/012/30897.02 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California 11 ss. County of `t U P,�'S 1 tl ( -f. [� t,1 t�1 ,L On UYler �/ o�,�0y _beforeme,JUctt1- V, 0 , IvTC 0 (S• IYo\0.Y�r �u� i bale e,I Name and Title of Ofocer(s g.,'Jane D Notary Publlb') personally appeared �0Y1 0deI1, CknC1tV' rYtQn and J tdriciaQ ,Sctpae .y Name($)of Sandi Xss d 5TCt i ii ill D<personally known to me / ❑ proved to me on the basis of satisfactory evidence _ to be the persores whose name s�' ' ar JUDITHANICHOLS S subscribed to the within instrument and �' a Commfalon TAE7E2J f acknowledged to me that the executed NdayPrrbMc-Callfornla the same in hieflh l authorized RNersldeCouMy ( capacityl and that by thel �ANCarrwn•FF.>�Mesi+AaV41.20081 signatur son the instrument the perso s , or — — — — — — the entity upon behalf of which the persodi acted, executed the instrument. WITNESS my hand and official seal. V Signature of Nofary Public ��0 d OPTIONAL ` 0 Though the information below is not required by law,it may prove valuable to persons relying on the document and could preven �. fraudulent removal and reattachment of this form to another document. - DeSGription of Attached Document ry^� } n Title or Type of Document: Q r `Cl 1 f C-( �0.�•1 �r✓1 1��vq)r e e { e +�� 1 Document Date: c,.)v K e Q. 0 Number of Pages: 1 Signer(s)Other Than Named Above: VTdT. A rEiAq{'hC� C0V�5e-�� ,T6k;I Wessw, �t � QV14`0.1h69 -0.rTler Capacity(ies) Claimed by Signer 'Po jQrlSigner'sName: l 6t _ CCJJc �Y. •� ❑ Individual I .} Top of thumb have �Corporate Off!car—Title(s): ChG.IY`Wl(aVl and �}SSIrti p 1�CYCfCIYy ❑ Partner—❑ Limited ❑General ❑ Attorney-in-Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: I Signer Is Representing: TLte CowilaYvuYitt� Re �ev2lop me�t� r,c. C' %n S 01999 National Notary Association•9350 De Salo Aea,P0,S.2402•Chalswodh,CA 91313-2402•euww.nalmnalnol.,ne Prod No.6907 BeoNer Call Tmll 1800-076-6827 4-0469455 IIIIIIIIIIIIIIII1111111 IIII11111IIII1111III1106 $©2 0121 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of ( �Ll�O Q�li9 County of idEQSi�e On r ��1�� �� ��O`� before me, Date Name and Title of Officer(e.g.,"Jane Doe,Notary Public') personally appeared 2j,15-ssli Name(s)of Signers) fJ✓personally known to me-OR-❑proved to me on the basis of satisfactory evidence to be the person whose name(A is/$re subscribed to the within instrument and acknowledged to me that he/_*m #fiaTexecuted the 0 same in hisiltilli authorized capacity(Iiiiq, and that by MARTHA R. HIGGINS his/17Ec{t it signature(1 on the instrument the persona , COMM.#1286642 rn or the entity upon behalf of which the person() acted, W -'" - !Notary Public-CaliforniaN RIVERSIDE COUNTY executed the instrument. -+ My Comm.Exp.Dec.27,21 [ ►. ., ... r,.•r���.. , , . ,�` WITNESS my hand and official seal. /fC-ti�, Signature of Notary Pri OPTIONAL Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: A--,/Zen_M � T u= m 03N Document Date: l ��G� Z Za�4 Number of Pages 00©o Signer(s) Other Than Named Above 7�o/�r.C��' C'Nr�len d ,4�a'� PisrntZra "ac Capacity(ies)" �Claimed by Slgner(s)' A 55T: V Signer's Name: DF/A) �OE55" ,¢R� Signer's Name: ❑ Individual ❑ Individual C ❑ Corporate Officer ❑ Corporate Officer Title(s): _ Title(s): ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General ❑ Attorney-in-Fact ❑ Attorney-in-Fact ❑ Trustee ❑ Trustee �r••-❑ Guardian or Conse ator ❑ Guardian or Conservator e � f... , Sri Other: W 85s Top of thumb here ❑ Other; Top of Thumb here Signer Is Representing: Signer Is Representing: f ©1995 National Notary Association•8236 Remmet Ave PO.Box 7184•Canoga Park,CA 9 1 309-71 84 Prod.No.5907 Reorder Call Toll-Free 1-800-876-6827 h EXHIBIT "A" LEGAL DESCRIPTION OF THE SITE THAT CERTAIN REAL PROPERTY LOCATED IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA AS MORE PARTICULARLY DESCRIBED AS FOLLOWS: EXHIBIT A PARCEL 1: LOTS 1, 2, 3 AND 4 IN BLOCK 8 OF PALM SPRINGS, AS SHOWN BY MAP ON FILE IN BOOK 9 PAGE 432 OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA ALSO ALL THAT PORTION OF THE WESTERLY 8 FEET OF ORANGE AVENUE, AS SHOWN BY SAID MAP AND NOW KNOWN AS CAHUILLA ROAD WHICH LIES SOUTHERLY OF THE NORTHERLY LINE OF SAID LOT 1, EXTENDED EASTERLY AND NORTHERLY OF THE SOUTHERLY LINE OF SAID LOT 4, EXTENDED EASTERLY AS ABANDONED BY RESOLUTION OF THE BOARD OF SUPERVISORS OF RIVERSIDE COUNTY, ON MARCH 1, 1926, A CERTIFIED COPY OF THE RESOLUTION OF ABANDONMENT RECORDED MARCH 10, 1926 IN BOOK 667 PAGE 29 OF DEEDS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. PARCEL 2: THE EAST HALF OF LOT 24 AND THE EAST 24.2 FEET OF LOT 21 OF ALL IN BLOCK 8 OF PALM SPRINGS, AS SHOWN BY MAP ON FILE IN BOOK 9 PAGE 432 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA IIIIIIIIIIIIIIII IIIII IIIIIIIIIIIII III IN 06/18020 ofQ 2T 5 OR EXHIBIT "B" DESCRIPTION OF PROJECT The Project consists of a three and four-story, 48-unit, high-end boutique hotel project. The Site Plan is attached to this Exhibit as Bl. The first floor includes administrative and recreational areas, four hotel suite units, and parking. The second and third floors include 37 hotel rooms (17 and 20). The fourth floor would include 7 large hotel units, one exceeding 500 sq. ft. and the others 1000 sq. ft. The hotel will be of the caliber of a W Hotel but on a smaller scale, such as the Hotel Healdsdburg in the Valley of the Moon adjacent to-the Sonoma Valley region of the Northern California or The Inn at the Market in Seattle or the Camelback Gardens Hotel in Telluride. The projected daily rate per room is in the $200-$300 range. The anticipated construction cost of the Project will exceed Seven Million Dollars ($7,000,000.00). The architecture will be contemporary, urban style with the use of block, steel and other natural materials. The hotel will be positioned on the site with 20 feet clearance from the northerly boundary of the Winters Parcel, with extensive landscaping between the properties. Amenities would be those typical of a boutique hotel: outstanding rooms with W hotel quality furnishings and beds, a pool with spa, a workout/gym room, and if space permits, a small restaurant. The entrance will be a sweeping arch with tile or stamped concrete off of Tahquitz Canyon Way. Parking will be below grade in so far as possible with 22 spaces provided. The remainder of the required spaces will be provided by recorded covenant at the Fashion Plaza w across the street. ?N.r 0� The Project contemplates a unique transfer of development rights, as it is proposed that the historic residential stricture on the Winters Parcel will remain. The table below shows the C R-3 development standards, the development proposed in the Project, and the development which would be allowed on the Site single or on both properties together. EXHIBIT "B" TO OWNER PARTICIPATION AGREEMENT 1003/012/30897.02 F � • Criteria R-3 Development Proposed Project Allowed Project Allowed Project Standard Yield on Wessman's Yield on Both Project Properties Combined Minimum Lot 20,000 s.f. Meets standard 20,000 s.f.minimum 20,000 s.f.minimum Size minimum lot size (36,900 s.f) lot size lot size Density 1:1,000 s.f. 48 units 36 units 51 units Building Height 30' over no more 4 stories(42-44') 30' over no more than 30' over no more without High than 50%of ground 50%of ground floor than 50%of ground Rise Ordinance floor area area. floor area. Open Space 45% 22,950 s.f.before bay 22,950 s.f.before bay If all of Winter were under R-3 parking and driveways parking and driveways counted(as part of a Standard(not (approx. 16,000 s.f)0 (approx. 16,000 s.f.)— total of 51,900 s.f.)as High Rise) comes close to 45% comes close to 45% "open space"then open space would be about 61% Parking 1 for each room up 22 spaces on site, Would need 48 spaces Would need 51 to 50 rooms; 0.75 remainder by covenant spaces for each room over 50 rooms The construction of the Project will require construction of walls and installation of landscaping along the southern boundary of the Site and partially on the Winters Parcel. Participant shall enter into an agreement with the property owner concerning walls, fencing and landscaping in such area, and specifying the method of construction. Interference with business aN operation on the Winters Parcel shall be minimized. NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, IT IS EXPRESSLY ACKNOWLEDGED THAT THE PROJECT WILL REQUIRE LAND-USE APPROVAL BY THE CITY AND NOTHING HEREIN, INCLUDING THE DESCRIPTION OF THE PROJECT IN EXHIBIT B AND THE APPROVAL OF THE AGREEMENT BY THE AGENCY, SHALL LIMIT THE DISCRETION OF THE CITY BY ITS PLANNING O COMMISSION AND CITY COUNCIL TO APPROVE, CONDITIONALLY APPROVE OR DISAPPROVE THE PROJECT. EXHIBIT "B" TO OWNER PARTICIPATION AGREEMENT 1003/012/30897.02 t �� • I ;ryT,�r r 7.9, a ran R MM ` l gl - � �"" UI, I \ I tEL ySA � h I� o r FS j zt n Ig x + n y � a L a R Ilk 1 a IIIIIIIIIIiIlllllllll11111111111Iilll111iill►lIII IN 06/10/IS 2 006029GOP EXHIBIT "C" SCHEDULE OF PERFORMANCE Description Date 1. Conceptual Planning with Architect 3 months from the execution date of this agreement 2. Preliminary Architectural Drawings 3 months [6 months from the [Ready for City Submittal] execution date of this agreement] 3. Architectural and PDD Approvals 6 months [12 months from the execution date of this agreement] 4. Final Architectural Construction Drawings 6 months [18 months from the execution date of this agreement] 5. Building Department Review 3 months [21 months from the execution date of this agreement] 6. Financing 3 months [24 months from the execution date of this agreement] 7. Construction 12 month [36 months from the execution date of this agreement] The above time requirements may be lengthened by up to 180 days (cumulatively) at the discretion of the Executive Director where Participant is proceeding in good faith to perform under this Agreement. craa - 18 II II I III II II I II II II I III II III I I III 06?800 0£ 8 17 of 21 EXHIBIT "D" CERTIFICATE OF COMPLETION FREE RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: THE PALM SPRINGS REDEVELOPMENT AGENCY 3200 E. Tahquitz Canyon Way Palm Springs, California 92262 Attn: Executive Director (Space Above This Line For Recorder's Office Use Only) CERTIFICATE OF COMPLETION WHEREAS, by an Owner Participation Agreement (hereinafter referred to as the "Agreement") dated 2004, by and between THE REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS (hereinafter referred to as "Agency"), and Wilco Development, (hereinafter referred to as "Participant"),- Participant has redeveloped the real property (the "Site"), legally described on Exhibit 1 attached hereto and incorporated herein by reference, according to the terns and conditions of said Agreement; and WHEREAS, pursuant to Section 3.7 of the Agreement, promptly after completion of all construction work to be completed by Participant upon the Site, and upon request by Participant, Agency shall furnish Participant with a Certificate of Completion in such form as to permit it to m be recorded in the Official Records of the Comity of Riverside; and Q.mw 60 N� WHEREAS, the issuance by Agency of the Certificate of Completion shall be conclusive m evidence that Participant has complied with the terms of the Agreement pertaining to the redevelopment of the Site; and WHEREAS, Participant has requested that Agency furnish Participant with the Certificate of Completion; and WHEREAS, Agency has conclusively determined that the redevelopment of the Site has been satisfactorily completed as required by the Agreement; and WHEREAS, the Agreement provided for certain covenants to run with the land, which covenants were incorporated in a Declaration of Covenants, Conditions and Restrictions (the "Declaration"); e EXHIBIT "D" TO OWNER PARTICIPATION AGREEMENT Page 1 of 3 1003/012/30897.02 NOW, THEREFORE: 1. As provided in the Agreement, Agency does hereby certify that redevelopment of the Site has been fully and satisfactorily performed and completed, and that such redevelopment is in full compliance with said Agreement. 2. This Certificate shall not constitute evidence of Participant's compliance with the Declaration, the provisions of which shall continue to run with the land. 3. This Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of Participant to any holder of a mortgage, or any insurer of a mortgage, securing money loaned to finance construction work on the Site, or any part thereof. Nothing contained herein shall modify in any way any other provision of said Agreement. 4.. This Certificate is not a Notice of Completion as referred to in California Civil Code Section 3093. 5. Except as stated herein, nothing contained in this instrument shall modify in ally way any other provisions of the Agreement or any other provisions of the documents incorporated therein. IN WITNESS WHEREOF, Agency has executed this Certificate as of this day of , 200 . THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS B Y N m w Executive Director RM �m rn m°1 N 1 m i i_ v EXHIBIT "D" TO OWNER PARTICIPATION AGREEMENT Page 2 of 3 10031012/30997.02 EXHIBIT "D" LEGAL DESCRIPTION OF SITE [TO BE INSERTED] Q m gym„ � m � 0 N,CN m� N t 0 � c EXHIBIT "D" TO OWNER PARTICIPATION AGREEMENT Page 3 of 3 1003/012/30897.02 SK THOLDER -COPY STATE P.O. BOX 807, SAN' FRANCISCO,CA 9.4142-0807 COMPENSATION INSURANCE FUND CERTIFICATE OF ;WORKERS'-COMPENSATION INSURANCE ISSUE DATE: 01-01-2005 GROUP: 000496 , - POLICY NUMBER: 0001740-2004 -- CERTIFICATE,ID: 7 �Ej"---"}'' CERTIFICATE EXPIRES: 01-01-2005 n>' ,01-01>2005/01-01-2006 CITY' OF PALM SPRINGS SK , JOB: STEIN MART OPA OFFICE OP"T,HE CITY CLERK P 0 3OX"2'743 PALM SPRINGS CA 92263 This is to certify that we have issued a valid,Workers' Compensation insurance policy in a form approved by the California Insurance Commissioner to the employer named below for the policy period indicated. This policy is not subject to cancellation by the Fund except upon lodays' advance written notice to the employer. We will also give you 10 days' "advance notice should this policy be cancelled prior to its normal expiration. This certificate of. insurance is not-an insurance policy and does not amend, extend or alter the coverage -afforded by the policies listed herein. Notwithstanding any requirement, term, or condition of any contract or other "document. , with respect to which this certificate of 1. insurance may be issued or may pertain; the insurance afforded by the policies described herein is subject to all the terms; exclusions and conditions of,such policies. AUTHORIZED REPRESENTATIVE PRESIDENT EMPLOYER'S'-LIABILITY LIMIT INCLUDING DEFENSE COSTS: '$1,000;000.00 PER OCCURRENCE. STANDARD EXCLUSION: INDIVIDUAL EMPLOYERS AND HUSBAND ,AND WIFE.-EMPLOYERS ARE NOT ELIGIBLE., FOR BENEFITS AS EMPLOYEES UNDER THIS, POLICY. - EMPLOYER " , „LEGAL NAME WESSMAN DEVELOPMENT COMPANY WESS AN,"JOHN 300 S PALM CANYON DR PALM SPRINGS CA 92262 „ (REV.3-03) PRINTED.- '1 211 7/2 004 P0408 7169�I�INIIU�I�AYi:I_�.'1e\-1�11'�:�ii—#�Ti F��1-Ie1�1�<41:i�11111� ' .$K _.. - C ('HOLDER, COPY .' STATE P,O. `BOX ,807 SAN�FRANCISCO CA W 42 0807 �U u Z COMPE�ISATION - _ - ' '- IN's U'Ft,A N CI E- FUND CERTIFICATE OF;=WORKERS COMPENSATION,INSURANCE ISSUE DATE- 01-01-2,005 � '�GAOUP: - 000466 _ "POLICY NUMBER- - 6061740-2004� _ - CERTIFICATE 10: 2 _ CERTIFICATC EXPIRES:' 01-01-2006 01-01-2,00z5/01--01=2006 CITY OF PALM SPRINGS SK JOB: 309C BULLOCKS MERCADO ?�9 a OFF}GE OF CITY CLERK—ATTN PATRICIA SANDERS >° 3200 TAHQUI`TZ CANYON WAY' PALM SPRINGS CA ,92262 ' - �P 2' aj j This is to certify that we have issued a valid Workers' Compensation insurance policy in a form approved by the California Insurance Commissioner to the employer named below for the policy period indicated. This policy is not subject to cancellation by the Fund except upon 10 days' advance written notice to the employer. We will also give you 10 days' advance notice should this policy be cancelled prior to its normal expiration. This certificate of, insurance is hot an insurance policy and ,does not amend, extend Or alter the coverage afforded by the policies listed herein. Notwithstanding any requirement, term, or condition of any contract or other document with respect to which this certificate of insurance-.maybe-issued or may pertam,;the insurance afforded by the policies described herein is subject to all the terms, exclusions and conditions of such policies. AUTHORIZED. REPRESENTATIVE PRESIDENT EMPLOYER'S LIABILITY LIMIT. INCLUDING DEFENSE COSTS: $1,000,000..00 PER OCCURRENCE. STANDARD EXCLUSION: INDIVIDUAL EMPLOYERS AND,HUSBAND AND,WIFE EMPLOYERS ARE NOT ELIGIBLE FOR BENEFITS AS EMPLOYEES UNDER THIS POLICY. EMPLOYER LEGAL' 'NAME .` WESSMAN D VEL OPMENT CQ„MF'ANY WESB, AN • JoHN` 300 S PALM CANYON DR PALM SPRINGS CA92262: ' t3/17I2004 leevs-oat PRINTED: . P040a