HomeMy WebLinkAbout04702 - GARRY KIEF BARNEY TRUST EXCHANGE AGR DOCUMENT TRACKING Page: 5
Report: Expired Documents Summary March 4, 2008
Condition: Oldest Date= / /, Groups= COMMUNITY&ECONOMIC, ALL Services,ALL XREFs
Document# Description Approval Date Expiration Date Closed Date
A4702 Exchange Agreement Open Space ��J5/21/2003 05/01/2006
Company Name: Barney Trust �� ��yC6
Address: '
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Group: COMMUNITY& ECONOMIC s, U
Service: In File
xRef: COMMUNITY& ECONOMIC DEVELOPMENT
Ins. Status: INACTIVE
A4713 Develop Tahquitz Creek Resort Hotel &Timeshares 06/04/2003 06/01/2006
Company Name: S D C - Swank Development Corp.
v
Address: 78060 Calle Estadp, La Ouinta, CA 92253
Phone: (760) 777-1557
Group: COMMUNITY& ECONOMIC �J' y c;;
Service: In File `
xRef: COMMUNITY& ECONOMIC DEVELOPMENT V
Ins. Status: Certificate and Policies are OK
A4757 H U D Grant 2003-04 C D B G Program Y" 09/03/2003 12/01/2004
Company Name: Department Of Housing And Urban Dev.
Address: , ,
Group: COMMUNITY&ECONOMIC
Service: In File
xRef: COMMUNITY& ECONOMIC DEVELOPMENT
Ins. Status: INACTIVE
Garry C. Kief
Exchange Agreement
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?j � AGREEMENT #4702
EXCHANGE AGREEMENT R20610, 5-21-03
J2,C!.,
THIS EXCHANGE AGREEMENT is made effective as of the c: d day of
2003 by and between Garry C. Kief, as Trustee of the BARNEY TRUST
("TRU "), and THE CITY OF PALM SPRINGS, CALIFORNIA, a California Chartered
Municipal Corporation ("City").
RECITALS
A The Trust has the right to purchase and, as of the date of closing, will be the owner of that
certain unimproved real property located in the City of Palm Springs, County of Riverside,
State of California,consisting of approximately forty-five (45) acres which real property is
more particularly described in attached Exhibit A ("Trust Property").
B The City is the owner of that certain unimproved real property located in the City of Palm
Springs,County of Riverside, State of California,consisting of approximately forty five(45)
acres which is more particularly described in attached Exhibit B ("City Property").
C In addition to the Trust Property, the Trust owns additional real property which is located
adjacent to the City Property("Trust Residence Property"). The Trust Residence Property,
which consists of several parcels,has been improved as a residential complex, consisting of
several residences and outbuildings.
D The City owns an additional parcel which is used for hiking and equestrian trails,roadways
and a outdoor picnic area which is surrounded by the City Property and which has been
excluded from the exchange("City Facilities Property"). The Trust understands and agrees
that the City Facilities Property is for the public use and enjoyment and may be modified,
upgraded and improved at the discretion of the City; provided that any such modification,
upgrade or improvement shall be designed and used for access and picnic, equestrian and
hiking purposes only.
E Both the Trust and the City desire to assure that neither the Trust Property nor the City
Property are developed, with the exception of paths, trails and fencing, and to that end are
willing to accept the respective properties in the fashion set forth hereinafter to assure that
neither the Trust Property nor the City Property are developed and that those properties shall
remain as permanent open space.
F The City, pursuant to its authority under Government Code Section 37350, to acquire and
dispose of property for the common benefit, deems this exchange to be in the best interest of
the City because it results in 45 additional acres within the City being held in an Undeveloped
and natural state for the long term benefit of the City and its residents,without expense to the
City.
G The Trust deems this exchange to be in its best interest because it assures that the City
Property will remain in an undeveloped and natural state,and that the City Facilities Property
1003/001/24475 Q 1
will continue to be used exclusively for picnic, equestrian and hiking purposes only,to the
benefit of the Trust Residence Property.
NOW,THEREFORE,in consideration of the mutual covenants and conditions contained herein,the
parties do hereby agree as follows:
1 EXCHANGE:
The Trust agrees to convey the Trust Property to the City and the City agrees to convey the City
Property to the Trust, subj ect to the terms and conditions hereinafter set forth,together with all rights
and appurtenances thereto.
2 CONVEYANCE:
Each of the parties agree that it shall convey its property to the other utilizing the form of Deed
attached hereto as Exhibit C ("Deed").
3 ESCROW
Within 10 days from the date hereof the Parties will deliver signed escrow instructions to Chicago
Title Company,750 North Palm Canyon Drive,Palm Springs,California,("Escrow Holder"),a copy
of which instructions are attached hereto, marked Exhibit D ("Escrow Instructions"), and by this
reference made a part hereof. Escrow fees shall be paid entirely by the Trust. The escrow
instructions shall in all cases be consistent with the provisions of this Agreement,and in the event of
a conflict between the terms of the escrow instructions and this Agreement, the terms of this
Agreement shall prevail. At the close of escrow("Closing"),titles to the respective properties shall
be conveyed by the duly executed and acknowledged Deeds. Closing shall occur on that date that fee
title to the Trust Property is conveyed to the City and fee title to the City Property is conveyed to the
Trust as contemplated by this Agreement and evidenced by the recording of the Deeds by the Escrow
Holder. The Escrow Holder is authorized to submit all documents for recording and close the
transfer when all of the conditions contained in this Agreement have been satisfied or waited in
writing by the party benefitting from the condition. Unless waived by the parties,if closing does not
occur on or before December 31, 2003,Escrow Holder shall return all documents to the originating
party.
4 PHASE 1 HAZARDOUS MATERIALS REPORT
Within 45 days from the date hereof, the Trust, at its sole expense, shall cause Earth Systems
Southwest to inspect each of the properties and to issue its Phase 1 Report ("Hazardous Materials
Report") to each of the Parties. In the event the Hazardous Materials Report indicates that either
property is likely to have been contaminated by any Hazardous Material,either Party may terminate
this agreement and the Escrow.
5 TITLE
At closing, each of the Parties shall convey to the other party title to their respective property, free
and clear of any and all liens,encumbrances,covenants,conditions,restrictions,easements,rights of
way and assessments except those acceptable to both parties set forth on a preliminary title reports to
1003/001/24475 v2 2
be furnished by the Trust, at its sole cost and expense, within ten days after approval of this
Agreement by the City. In the event the preliminary title report with respect to either exchange
property contains any lien,encumbrance,covenant,condition,restriction,easement,right of way or
assessment which is unacceptable to the parry which is to receive that property in the exchange,that
Party may terminate this agreement and the Escrow.
6 REPRESENTATIONS AND WARRANTIES
Each of the Parties makes the following representations and warranties to the other which shall be
true as of the date hereof and as of the Closing:
A This Agreement and all agreements, instruments and documents herein provided to be
executed or to be caused to be executed by each Party on or before the Closing will be duly
authorized, executed and delivered by and binding upon that Party and enforceable in accordance
with its terms; and each Party has the authority to enter into this Agreement and to consummate the
transactions herein provided.
B Neither Party has (i)received notice of any outstanding violation of or been charged
with the violation of any material legal requirement, restriction, condition, covenant or agreement
affecting its Property or the marketing, constriction, development, use, operation, maintenance or
management of its Property which has not been cured,or(ii)been served in any unresolved litigation
relating to its Property or the marketing,construction,development,use,operation,maintenance or
management of the Property. Neither Party has actual knowledge of any actions, suits, claims or
proceedings, governmental or otherwise, pending or threatened against its Property or any portion
thereof.
C Neither Party is a parry to any certificate, instrument,contract,deed of trust,mortgage,
indenture, agreement, covenant or other restriction, and there is no provision in any Trust
Agreement, Charter or law, or any judgment, order, writ, injunction, or decree of any court,
governmental body or arbitrator, which would prohibit or otherwise be breached or violated by the
entering into, execution, delivery or performance by either Party of this Agreement or the
consummation of the transactions contemplated hereby.
D Both Parties acknowledge that they are required to disclose if their respective properties
lie within the following natural hazard areas or zones: (i)a special flood hazard area designated by
the Federal Emergency Management Agency(California Civil Code Section 1102.17);(ii)an area of
potential flooding (California Government Code Section 8589.4); (iii) a very high fire hazard
severity zone(California Government Code Section 51183.5);(iv)a wild land area drat may contain
substantial forest fire risks and hazards (Public Resources Code Section 4136); (v) an earthquake
fault zone(Public Resources Code Section 2621.9);or(vi)a seismic hazard zone(Public Resources
Code Section 2694). However, because the purpose of this transaction is to assure that neither the
City Property nor the Trust Property are developed, each Party hereby waives this disclosure
requirement. Neither Party shall have any responsibility for matters not actually known to it. In
addition, neither Party has knowledge of any hazardous materials or hazardous substances on its
Property.
1003/001/24475 v2 3
E There are no service, maintenance, employment, supply, management or other
agreements affecting either Property, either oral or written, which will remain in effect after the
Closing.
F There are no leases, licenses or other agreements permitting the use or occupancy of
either Property which will remain in effect after the Closing. There are no persons entitled to use or
occupy either Property or any portion thereof by reason of any easements by prescription or
necessity.
G Neither Party has: (a) made a general assignment for the benefit of creditors; (b)filed
any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by its creditors;
(c)suffered the appointment of a receiver to take possession of all or substantially all of its assets;or
(d) suffered the attachment or judicial seizure of all, or substantially all, of its assets.
H Neither Party has granted any person any right to acquire all or any portion of its
Property, including, without limitation, any development, mineral or air rights relating to its
Property.
I Neither Party has actual knowledge of: (a) any condemnation,pending or threatened,of
its Property or any portion thereof, including any right of access to its Property;(b)any government
plans for public improvements that might result in a special assessment against its Property;or, (c)
any underground or above-ground storage Ranks on its Property.
J The exchange of the Properties and the performance of each of the Parties' obligations
hereunder are not subject to any requirement to obtain any approval or consent of any other
governmental agency or third party.
K Neither Party is a "foreign person" within the meaning of Section 1445(f)(3) of the
Internal Revenue Code.
L Except as otherwise expressly provided in this Agreement including this Article 6,
neither Party makes any representation, warranty or guarantee whatsoever with respect to its
Property, or any aspect thereof. Each Party acknowledges and agrees that if the exchange occurs,
except as otherwise provided herein, it will be acquired"AS -IS,"and each Party's decision in that
regard shall be based on its own independent investigation and analysis of the Property.
M The representations,warranties and covenants made by each Party in this Article 6 shall
survive the Closing and the recordation of the deeds.
7 BROKERAGE COMMISSION
Each party represents to the other that no real estate brokers are involved in this transaction.
1003/001/24475 v2 4
8 MISCELLANEOUS PROVISIONS
A Unless otherwise provided herein,any notice,tender or delivery to be given hereunder
by either party to the other may be effected by personal delivery or by registered or certified mail,
postage prepaid, return receipt requested, and shall be deemed cornmunicated as of the date of
mailing. Mailed notices shall be addressed as set forth below but each party may change its address
by written notice in accordance with this paragraph:
CITY: CITY OF PALM SPRINGS
3200 East Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: City Manager
Copy to: Aleshire & Wynder, LLP
Tower 17
18881 Von Karman Avenue, Ste. 400
Irvine, CA 92612
Trust: BARNEY TRUST
P. O. Box 45348
Los Angeles, CA 90045
Copy to: Selzer, Ealy, Hemphill and Blasdel, L.L.P.
Paul T. Selzer, Esq.
777 East Tahquitz Canyon Way
Suite 328
Palm Springs, CA 92262
B This instrument contains the entire agreement between the parties relating to the matters
contained within this Agreement. Any oral representations or modifications concerning this
instrument shall be of no force or effect excepting a subsequent modification in writing signed by all
parties.
C In the event of any litigation or arbitration between the parties hereto, arising out of or
relating to this Agreement,or the breach thereof,the prevailing party shall be entitled,in addition to
such other relief as may be granted,to a reasonable sum as and for attorneys' fees in such litigation
or arbitration which shall be determined by the court in such litigation or arbitrator or in a separate
action brought for that purpose.
D This Agreement shall be binding upon and shall inure to the benefit of the respective
heirs, personal representatives, successors and assigns of the parties hereto.
E This Agreement is entered into in the State of California, concerns real property
located within this state,and all questions concerning the validity,interpretation and performance of
any of its terms or provisions or any of the rights or obligations of the parties hereto shall be
governed by and resolved in accordance with the laws of the State of California.
1003/001/24475 v2 5
F Each party hereto agrees to execute and deliver such other and further documents and
perform such other acts as shall be necessary to effectuate the purpose of this Agreement.
G Any waiver of the breach of any covenant, condition or promise contained within this
Agreement shall not be deemed a waiver of any succeeding breach of the same or of any other
covenant,condition or promise set forth within this Agreement. No waiver shall be deemed to have
been given unless given in writing and in compliance with the Notices section set forth above.
H Time is expressly deemed to be of the essence of this Agreement and each and every
provision hereof.
I This Agreement may be executed in one or more counterparts,and bear the signature of
each Party on a separate counterpart,each of which when so executed and delivered shall be deemed
an original but all of which taken together shall constitute but one and the same instrument.
Signatures on facsimile copies when so delivered shall be deemed to be originals and shall operate in
the same manner as original counterparts.
J All representations and warranties set forth in this Agreement and all provisions of this
Agreement shall survive Closing and be fully enforceable thereafter.
K This Agreement does not confer any rights or remedies upon any person,firm or entity
other than the Parties and their respective successors and permitted assigns.
L No officer or employee of the City shall have any financial interest, direct or indirect,
in this Agreement,nor shall any such officer or employee participate in any decision relating to the
Agreement which affects its financial interest or the financial interest of any corporation,partnership
or association in which he is, directly or indirectly, interested, in violation of any State statute or
regulation. The Trust warrants that it has not paid or given and will not pay or give any third party
any money or other consideration for obtaining this Agreement.
[Signature page appended]
1003/001/24475 Q 6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and made it
effective as of the day and year first above written.
ATTEST: CITY OF PALM SPRINGS, a
municipal corporation
By
City Clerk '7je�� City Manager
REVIEWED AND APPROVED
ALESHIRE & WYNDER, LLP
By: 92AG r—
D J. re, Esq.
City Attorney
GARRY C. KIEF
Trustee, The Barney Trust
1003/001/24475 v2 7
IN WITNESS WHEREOF,the parties hereto have executed this Agreement and
made it effective as of the day and year first above written.
ATTEST: CITY OF PALM SPRINGS, a
municipal corporation
By: By:
City Clerk City Manager
REVIEWED AND APPROVED
ALESHIRE &WYNDER, LLP
By:
David J. Aleshire,Esq.
City Attorney
(A7 . HIETf
Trustee, he Barney Tr st.
8
EXHIBIT A
LEGAL DESCRIPTION
TRUST PROPERTY
The West half of government lots 2 and 3, in Section 33, US,R4E, San Bernardino Base
and Meridian, according to the official plat thereof, in the County of Riverside, State of
California.
EXHIBIT B
LEGAL DESCRIPTION
CITY PROPERTY
The southeasterly 45 acres of that certain parcel conveyed to,the City of Palm
Springs by Jeanette Stewart and Bank of California,NA, recorded July 11, 1977 in the
official records of Riverside County, California as instrument number 129589, excluding
therefrom all property currently used for public hiking and equestrian trails, roadway and
picnic area.
A more precise legal description shall be completed and attached as a substitute
legal description upon approval by Gary Kief,Trustee and Douglas R.Evans,Director of
Planning and Zoning of the City of Palm Springs, as evidenced by their signature on such
substituted Exhibit.
Post Office Box 2743 • Palm Springs, California 92263-2743
EXHIBIT C
FORM OF DEED
CITY TO TRUST
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Selzer,E aly,Hemp hill&Blas dell,LLP
777 E. Tahquitz Canyon Way, Suite 328
Palm Springs, CA 92262
MAIL TAX STATEMENTS TO: DOCUMENTARY TRANSFER TAX$
Computed on the consideration or value of
Property conveyed, OR
The Barney Trust
c/o Garry Mef Computed on the consideration or value less
P. O. Box 45348 Liens or encumbrances remaining at time of
Los Angeles, CA 90045 sale.
Signature of Declarant or Agent determining tax-Firm
Name
GRANT DEED
FOR A VALUABLE CONSIDERATION,receipt of which is hereby acknowledged,The City of
Palm Springs, California, a Municipal Corporation, Grantor, hereby GRANTS to
GARRY KIEF,TRUSTEE OF THE BARNEY TRUST,
the real property in the City of Palm Springs, County of Riverside, State of California, described
as:
[LEGAL DESCRIPTION.....ALL WITHIN THE CITY OF PALM SPRINGS,
CALIFORNIA CONTAINING APPROXIMATELY 45 ACRES MORE OR LESS]
This grant deed is made in consideration of the covenant of the GRANTEE that the
property conveyed hereby shall,with the exception of trails,paths,fences or walls,be retained
exclusively as natural open space and be managed and maintained as such, in perpetuity.
Dated By:
City of Palm Springs
EXHIBIT D
ESCROW INSTRUCTIONS
SEE ATTACHED ESCROW INSTRUCTIONS FROM CHICAGO TITLE COMPANY
TO BE PROVIDED