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HomeMy WebLinkAbout12/17/2003 - STAFF REPORTS DATE: DECEMBER 17, 2003 TO: COMMUNITY REDEVELOPMENT AGENCY FROM: DIRECTOR OF COMMUNITY & ECONOMIC DEVELOPMENT RESCISSION OF FIRST AMENDED LICENSE AGREEMENT (AGREEMENT 454C) AND APPROVAL OF OVERFLOW VALET PARKING LICENSE AGREEMENT WITH THE AGUA CALIENTE BAND OF CAHUILLA INDIANS FOR THE USE OF A PORTION OF A 5.7 ACRE AGENCY-OWNED PROPERTY, KNOWN AS THE PRAIRIE SCHOONER PARCEL, FOR 200 OVERFLOW VALET PARKING SPACES FOR A PERIOD OF SIX MONTHS RECOMMENDATION: It is recommended that the Agency rescind the First Amended License Agreement (Agreement 454C) and approve a Valet Parking License Agreement for the use of a portion of the Prairie Schooner Parcel with the Agua Caliente Band of Cahuilla Indians (the "Tribe") for a period of six months, for 200 spaces of overflow valet parking for the Spa Casino SUMMARY: On October 16, 2002 the Agency approved a Construction License Agreement with the Tribe to approve the use of an Agency-owned lot known as the Prairie Schooner parcel for a construction trailer campus in connection with the development of the Tribe's Spa Casino project. This action was unchallenged by any parties. As consideration for this License, the Tribe agreed to clear and finish the parcel to make it more suitable for development. On May 23, 2003 the City approved a Mitigated Negative Declaration on the expansion of the Convention Center including additional parking. The Mitigated Negative Declaration analyzed traffic from the Spa Casino and assessed the use of the Prairie Schooner parcel as overflow parking. This action was also unchallenged. On September 3, 2003 the Agency approved a First Amended License Agreement with the Tribe setting forth terms related to the construction and use of a parking lot on the Prairie Schooner parcel. The Tribe was attempting to secure the opportunity for additional overflow parking for their Spa Casino project. The Agency required that the Tribe actually develop the parking lot, that the Tribe pay fair market value and that the parties both be able to use the parcel. However, the Amendment was intended to be short-term while the parties negotiated a 20-year lease. This Amendment triggered significant objections on various grounds and led to a lawsuit. However, the lawsuit did not attempt to halt actual construction of the parking and the parking on the Prairie Schooner has now been completed and is in use. Staff recommends that the prior Amended License be rescinded and replaced with the new "Overflow Valet Parking License Agreement" (Valet Parking License). Under this License the Tribe will have the non-exclusive use of 200 parking spaces for overflow valet parking for the Spa Hotel & Casino operation. The Tribe's primary valet parking spaces are on its own property, directly in front of the hotel and in front of the casino. In all likelihood, the Tribe will use the Prairie Schooner lot only during peak usage periods at its facilities,which CZA A are often off-peak from the primary intended use of the lot, as Convention Center overflow parking. Allowing the Tribe to use the parking lot will reduce the total number of cars parked on City streets from the overflow generated by the Tribe's hotel and casino. In the case of a major event held at the Convention Center, the Convention Center would have use of the entire lot, including the licensed valet spaces. In addition, the Agency has the right to move the 200 spaces to different portions of the lot, if the need arises. The Agreement is for a short-term use of the property—approximately six months —and is at fair market value. The Tribe has not requested nor does the Agency feel it is necessary to give financial assistance to the Tribe in this transaction. The Agency is requesting that the Tribe pay fair market value for the overflow valet parking, calculated as follows: Estimated fee value of the site ($/sf) $13.00/s.f. Estimated square footage of licensed spaces (average of 300 s.f./space x 200 spaces) 60,000 s.f. Total Fee Value of the Licensed Site $780,000 License (Lease) Capitalization Rate 8.00% Annual License Fee $62,400 Monthly License Fee $62,400/12 = $5,200 There are generally hours of limitation on the use of the licensed spaces by the Tribe, which are as follows: Thursdays, Fridays, and Saturdays for 12 hours each day. (36 hours per week) However, there is an Extra Use Fee which allows the Tribe to purchase the use of additional spaces, either for additional hours or in excess of 200 spaces,when not needed by the City. Since the monthly fee is $5,200 for 200 spaces, it works out to $26.00 per space per month, or$433.00 per day for the 200-space lot. (The $5,200 is for essentially 12 days per month: it works out to $433.33 per licensed day.) This would be the fee for additional spaces ($26.00/space/month) or additional days (at $433.00 for 200 spaces/day). The per day-per space cost is approximately$2.17. In order to be sure the Agency was not providing a below-market rate on the license of the spaces, staff researched valet parking leases in and near downtown Palm Springs and found that private sector leases are less costly per space than the License, even for everyday use (typically an office building, after hours). As previously stated, the term shall be approximately six months (to 6/30/04), in order to have time for the Agency to prepare a Disposition and Development Agreement (DDA). As in other Agency agreements (such as Exclusive Agreements to Negotiate), it may be extended for up to 60 days if a DDA has been prepared but not yet approved, or has been approved by one party but not yet by the other. It remains the case that the Tribe wishes to secure a long-term arrangement with the Agency which would include a 20-year market value lease. Such an agreement to be valid will require a number of elements beyond the scope of this revocable license, including environmental analysis and a public hearing. Based on our discussion with staff for the Tribe, we believe the Tribe is also willing to rescind the Amended License and proceed based on the new Valet Parking License as provided above. )� With respect to the Valet Parking License, staff would like to point out several factors as to why it is a license, and not a lease as the long-term lease will be. These factors include: (a) the license is only for six months; (b) the license is revocable; (c) the license is not for exclusive use of a certain area but is relocatable; and (d) rather than rent, there is a fee for usage which varies according to the amount of usage. With respect to the Valet Parking License, we believe that the approval is a ministerial action since the exercise of discretion is not required for the approval of this use and we further believe that approval of the Valet Parking License is categorically exempt from CEQA under CEQA Guideline Section 15301, providing an exemption for operation, repair, maintenance or minor alteration of existing facilities and CEQA Guideline Section 15311, providing an exception for construction orr,placement of minor structures accessory to existing facilities. Y J�HN S. AYMO D Di ctor f Community and Economic Development APPROVED-4-- --� Executive Direc o� ATTACHMENTS: 1. Resolution 2. License Agreement VALET PARKING LICENSE AGREEMENT FOR OVERFLOW PARKING THIS VALET PARKING LICENSE AGREEMENT FOR OVERFLOW PARKING (the "Valet Parking License") is made and entered into as of , 2003 by and between the Community Redevelopment Agency of the City of Palm Springs, a public body, corporate and politic (the "Agency") and the Agua Caliente Band of Cahuilla Indians (the "Tribe"), with reference to the following facts: A. Agency is the Owner in fee simple of the real property commonly known as the Prairie Schooner Parcel located in the City of Palm Springs, County of Riverside, bearing APN Numbers 508-055-008, 508-055-009, and 508-055-007, and is legally described in Exhibit "A" attached and made a part hereof. Said property is hereafter referred to as the "Agency Parcel". Pursuant to this Valet Parking License, and subject to the terms and conditions set forth herein, the Agency is granting to the Tribe a license to enter upon and utilize a portion of the Agency's Parcel pursuant to the conditions set forth herein for the purpose of facilitating overflow valet parking to avoid excessive vehicular parking on City streets. B. As consideration for the use of the Agency's Parcel pursuant to this 'Valet Parking License, Tribe has agreed to pay a License Fee equivalent to a fair market lease of the licensed property, with extra payment for additional usage for the temporary use of Agency's Parcel. NOW, THEREFORE, in consideration of the foregoing, the parties agree as follows: 1. Consideration for License. In consideration of the granting of this license, the Tribe shall pay the Agency the amount of: 1.1 A base fee (the "Base Fee") of Five Thousand Two Hundred Dollars ($5,200.00) per month for usage up to 200 parking spaces during the periods of Thursday, Friday, and Saturday from 1 p.m. to 1 a.m. 1.2 For additional parking beyond said 200 spaces or outside of said hours, the Tribe may obtain the use of additional spaces at the rate of $2.17 per space per day (the "Extra Use Fee"). 2. Grant of License 2.1 Grant of License by Agency. Agency hereby grants to Tribe a license to enter upon the Agency's Parcel to utilize up to 200 parking spaces for overflow valet parking. Said license shall be nonexclusive and for the tribe's casino, hotel or other use of its facilities. Agency shall retain the right to enter the Agency's Parcel at any time. If a major event at the Palm Springs Convention Center requires the Agency to use Agency's property, Agency shall give the Tribe 3 days written notice prior to the event, and the Agency shall have the right to use the entire parking lot for that event. The Agency has the right to relocate the 200 spaces to different portions of the Agency's Parcel, upon 3 days prior written notice. The area for valet parking shall be separated from the remainder of the parking lot by temporary barriers. Revised Valet Parking License Agreement 12/8/2003 IrI 2.2 Term of License. The license granted to the Tribe pursuant to Section 2.1 above shall commence on December 17, 2003 and terminate on June 30, 2004. The Valet Parking License may also be extended for an additional sixty (60) days if a Disposition and Development Agreement for long-term use of the property has been drafted but not yet approved by one or both parties. 2.3 Revocable. Agency may terminate this Valet Parking License at its sole discretion at any time upon providing sixty (60) days written notice to Tribe. 2.4 Condition of Aoency's Parcel. Tribe shall keep any portion of Agency Parcel which is subject to this License, and all improvements thereon, in good condition and repair. In the event the Agency discovers trash or debris, or any nuisance or any darnage to any improvements thereon within the parking area or approved aisles subject to this 'Valet Parking License, or elsewhere on Agency's parcel not caused by Tribe or its use of the License area, Agency shall give notice to Tribe of such nuisance or damage and Tribe shall promptly correct same. 3. Indemnity and Insurance. Each Party severally agrees to defend and hold the other Party harmless from all claims, damages, and liabilities including reasonable attorneys' fees and costs of suit, resulting from any actual or alleged accident, injury, loss or damage whatsoever occasioned to any Person or to the property of any Person as shall occur on the Agency Parcel of, or by reason of any act or omission of, such indemnifying Party except to the extent caused by the indemnitee Party. Tribe shall secure insurance and indemnification from all contractors providing work on or using the Agency's Parcel in accordance with the City's standard requirements and as approved by the City Risk Manager. In addition, in the event of any challenge to the validity of this Valet Parking License, all legal costs and attorney fees for such defense shall be borne by Tribe. 4. Notices. Any notice to be given under this Valet Parking License 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: Assistant Secretary With Copy to: Aleshire & Wynder, LLP 18881 Von Karman Ave, Suite 400 Irvine, CA 92612 Attn: David J. Aleshire, Esq. Tribe: Agua Caliente Band of Cahuilla Indians 600 East Tahquitz Canyon Drive Palm Springs, CA 92262 With Copy to: Law Offices of Art Bunce 430 North Cedar Street, Suite H Escondido, CA 92025 Attn: Art Bunce, Esq. Revised Valet Parking License Agreement 12/8/2003 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 mails. Any party may change address for notice by giving written notice of such change to the other party. 5. General Provisions. 5.1 California Law. This Valet Parking License shall be interpreted, enforced and governed by and under the laws of the State of California and applicable Federal laws. 5.2 Transfers. Nothing contained in this Valet Parking License does, or shall be construed to, limit in any way the right and ability of the Parties to transfer, sell or encumber their respective properties. 5.3 Miscellaneous. This Valet Parking License may be modified only by a written agreement signed by the parties hereto. If any action or proceeding is commenced by any Party to enforce the terms of this Valet Parking License, the prevailing Party shall be entitled to recover from the other Party to this agreement reasonable attorneys' fees and costs in addition to any other relief awarded by the court. Time is of the essence of this Valet Parking License. The Parties' respective rights and remedies under this Valet Parking License are cumulative with and in addition to all other legal and equitable rights and remedies which the Parties may have under applicable law. 5.4 Sovereign Immunity Waiver. Except as stated herein, the Tribe does not waive, limit, or alter its tribal sovereign immunity from unconsented suit or other proceedings. The Tribe hereby does waive its tribal sovereign immunity from unconsented suit by only the Owner, and by no other party whatsoever, if the Owner seeks, in a court of competent jurisdiction located in Riverside County, California, (1) injunctive relief to compel the Tribe to comply with the specific duties to the Owner which the Tribe has expressly undertaken in this Agreement, or (2) monetary damages for breach of the specific payment obligations undertaken by the Tribe toward the Owner in this Agreement, with such relief limited to the amounts which the Tribe has expressly promised to pay to the Owner in this Agreement. As a pre-condition to any such suit, the Owner must first attempt an informal resolution of any such dispute regarding the Tribe's performance of its express obligations under this Agreement by (1) presenting to the Tribe, in the manner specified regarding notices herein, a simple and concise written statement of the specific obligations of the Tribe under this Agreement that the Owner believes that Tribe has not fulfilled, and (2) meeting in person with authorized representatives of the Tribe within thirty days of the Tribe's receipt of such notice to discuss the Owner's claim. This meeting will be excused if the Tribe does not make its representatives reasonably available during such 30-day period after receipt of such a notice of an in-person meeting. [SIGNATURE PAGE FOLLOWS:] Revised Valet Parking License Agreement _3_ 12/8/2003 ` I "TRIBE" By: Name: By: Name: _ Agua Caliente Band of Cahuilla Indians 600 East Tahquitz Canyon Drive Palm Springs, CA 92262 "AGENCY" COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Attn: Executive Director By: Its: ATTEST: Assistant Secretary APPROVED AS TO FORM: David J. Aleshire, Agency Counsel Revised Vale[Parking License Agreement _4- CkA- / 7 12/8/2003 EXHIBIT "A" AGENCY PARCEL LEGAL DESCRIPTION For the period of the Valet Parking License, the Tribe shall have the non-exclusive use of 200 parking spaces in the parking lot on the parcel shown below. IRV#25612 v2 C-1 RESOLUTION NO. OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, RESCINDING THE FIRST AMENDED LICENSE AGREEMENT (AGREEMENT 454C) AND APPROVING A LICENSE AGREEMENT WITH THE AGUA CALIENTE BAND OF CAHUILLA INDIANS FOR THE USE OF THE PRAIRIE SCHOONER PARCEL FOR OVERFLOW VALET PARKING 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 ("City"); and WHEREAS, an Original Construction License Agreement #454C (the "Original Agreement") between the Tribe and the Agency was approved by the Agency Board on October 16, 2002; and WHEREAS, the Original Agreement allowed for the exchange of the use of the property by the Tribe for certain improvements to the Prairie Schooner Parcel (the "Parcel"). The intent of the agreement was to facilitate the creation of a construction trailer campus and employee parking on the Parcel; and WHEREAS, through Resolution No. 1226, the Agency previously rescinded Resolution No. 1225 adopted on July 30, 2003 by which the Agency approved Amendment 1 to the Original Agreement; and WHEREAS, the Agency and Tribe entered into a First Amended License Agreement for the purposes of allowing the construction of 475 parking spaces for casino and Convention Center use for the Parcel, with 200 spaces reserved for Spa Hotel & Casino valet parking; and, fair market value rent for the parcel, Agency repayment to the Tribe for the cost of the improvements, and the Tribal contribution to the City for tourism-related uses; and WHEREAS, now that the parking lot on the Parcel has been completed (the "Parking Lot"), the Agency and Tribe now desire to rescind the First Amended License Agreement, and to instead adopt a Valet Parking License Agreement for Overflow Valet Parking (the "Valet Parking License") allowing the Tribe the non-exclusive use of 200 parking spaces for the Spa Hotel & Casino and the Tribe's other facilities for fair market value; provided, however, that the Agency shall be permitted to use the entire Parking Lot for Convention Center events; and WHEREAS, the approval of valet parking on the existing Parking Lot is a ministerial action with no exercise of discretion for the approval of this use. Further, the approval of the Valet Parking License is categorically exempt from the California Environmental Quality Act ("CEQA") under CEQA Guideline § 15301, providing an exception for operation, repair, maintenance, or minor alteration of existing facilities, and CEQA Guideline § 15311, providing an exception for construction or placement of minor structures accessory to existing facilities. 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; and SECTION 2. Agency Resolution No. 1226 and the First Amended License Agreement approved and incorporated thereby are hereby rescinded; and SECTION 3. Pursuant to CEQA, the Community Redevelopment Agency finds that the Valet Parking License is exempt in part pursuant to Public Resources Code § 21080(b)(1) and CEQA guidelines §§ 15268, 15369 as the issuance of a valet parking permit concerns a ministerial action with no exercise of discretion for the approval of this use; and SECTION 4. Pursuant to CEQA, the Community Redevelopment Agency finds that the Valet Parking License is exempt pursuant to California Code of Regulations Section 15301 as it concerns operation, repair, maintenance, or minor alteration of the Prairie Schooner existing Parking Lot facilities. The use of the Parking Lot is not being changed and the Valet Parking License merely concerns operation of the existing Parking Lot; and SECTION 5. Pursuant to CEQA, the Community Redevelopment Agency finds that the Valet Parking License is exempt pursuant to California Code of Regulations Section 15311 as it concerns an accessory structure to an existing facility; and SECTION 6. The approval of the Valet Parking License 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 encouraging economic activity in the redevelopment plan area, and to minimize the number of vehicles parked on City streets within the project area. The Valet Parking License concerns public improvements that serve all or a portion of the project area and were not required to be constructed as a condition of approval of any development by the Tribe. SECTION 7. The Valet Parking License is hereby approved and incorporated herein by reference. The Chairman or his designee is hereby authorized to execute on behalf of the Agency the Valet Parking License and other documents necessary to the Agreements, and make minor changes as may be deemed necessary, in a form approved by Agency Counsel. ADOPTED this day of , 2003. AYES: NOES: ABSENT: ATTEST: COMMUNITY REDEVELOPMENT AGENCY CITY OF PALM SPRINGS, CALIFORNIA By Assistant Secretary Chairman REVIEWED & APPROVED RESOLUTION NO. OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, RESCINDING THE FIRST AMENDED LICENSE AGREEMENT (AGREEMENT 454C) AND APPROVING A LICENSE AGREEMENT WITH THE AGUA CALIENTE BAND OF CAHUILLA INDIANS FOR THE USE OF THE PRAIRIE SCHOONER PARCEL FOR OVERFLOW VALET PARKING BE IT RESOLVED BY THE COMMUNITY REDEVELOPMENT AGENCY of the City of Palm Springs, California, that the First Amended License Agreement (Agreement 454C) is rescinded and a License Agreement with the Agua Caliente Band of Cahuilla Indians for the use of the Prairie Schooner parcel for overflow valet parking, is approved; and, the Executive Director or his designee is authorized to sign any documents related to the Contract. ADOPTED this day of , 2003. AYES: NOES: ABSENT: ABSTAIN: ATTEST: COMMUNITY REDEVELOPMENT AGENCY By Assistant Secretary Chairman REVIEWED & APPROVED