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HomeMy WebLinkAboutA4737 - EL DORADO PALM SPRINGS LTD MOBILEHOME PARK CONVERSION 4 Q PALM 6, O — � A'Pi of Palm Springs City N Department of Economic Development 3200 Rhgm¢Canyon Way • P.I.Spuogs,cahfomia 92262 FO R� TEL(760)323-8259/8197° FAX (760)322-5325 •TI)T):(760)864-9527 July 23, 2003 James F. Goldstein El Dorado Palm Springs, LTD., a California limited partnership 10100 Santa Monica Blvd., Suite 2030 Los Angeles, California 90067 Richard H. Close, Esq. Gilchrist &Rutter, APC 1299 Ocean Avenue, Suite 900 Santa Monica, California 90401 Re: Conversion of El Dorado Mobile Country Club Dear Messers Goldstein & Close: This letter is written in connection with, and is intended to be a side understanding between the parties to, that certain "Agreement Regarding Mobile Home Park Conversion," dated as of July 23, 2003. This letter is intended to set forth an understanding between the parties with respect to implementation of Paragraph Nos. 2.1 and 3.1 of such agreement. With respect to Lower Income Residents, the parties agree that, in the event fewer than one hundred (100) such residents are able to qualify for, receive, and close escrow under Paragraph No. 2.1 of this agreement, and there remains funds available, up to a maximum of five hundred thousand dollars ($500,000.00), the parties hereto agree to cooperate in good faith in an effort to assist additional Lower Income Residents to qualify for, receive, and close escrow by extending the dates of qualification contained in the agreement and by providing assistance in an amount(s) greater than five thousand dollars ($5,000.00). With respect to the Moderate Income Residents, the parties agree that, in the event fewer than one hundred (100) such residents are able to qualify for, receive, and close escrow under Paragraph No. 3.1 of the agreement, and there remains funds available, up to a maximum of five hundred thousand dollars ($500,000.00), the parties hereto agree to cooperate in good AG fi„4l tyy s,.Ca Post Office Box 2743 • Palln Springs, California 92263-2743 [RHC:aap/Letter Re City Settlement/071003/3400.01011003/021/24988 v1 James F. Goldstein Richard H. Close, Esq. July 23, 2003 Page 2 faith in an effort to assist additional Moderate Income Residents to qualify for, receive, and close escrow even if it is necessary to provide assistance in an amount(s) greater than five thousand dollars ($5,000.00) or to make the funds available to Lower Income Residents so they may purchase Units within the Property. Sincerely, Jo n S. Ray1 on , Director of Community &Economic Development ACKNOWLEDGED AND AGREED TO: El Dorado Palm Springs, Ltd. a California limited partnership By: Goldstein Properties, Inc. A California Corporation its sole G eral Partner Dated: V D� By: ames F. Goldstein Its: President Approval As To Form: Aleshire & Wynder, LLP r : 1✓�S� By. By City Attor City Manager C� Gilchrist & Rutter, PC By: / [RHCaap/Letter Re City Settlement/071003/3400 010]1003/021/24988 v] El Dorado Palm Springs Ltd Mobile Home Park Conversion AGREEMENT #4737 M07347, 7-23-03 AGREEMENT REGARDING MOBILE ]TOME PARK C0Ny1ERSr0 This AGREEMENT REGARDING MOBILE HOME PARK CONVERSION (the "Agreement") is made and entered into effective July 23 2003 (the "Effective Date"), by and between EL DORADO PALM SPRINGS, LTD., a California limited partnership ("Owner"), and the CITY OF PALM SPRINGS, a charter city & municipal corporation ("City"). As more fully defined in Section 1.2, Owner and the City are each sometimes referred to herein as a "Party" and together the "Parties". ARTICLE I. RECITALS; PURPOSE OF AGREEMENT; PARTIES 1.1 Background Regarding Agreement. (a) Owner is the owner of the El Dorado Mobile Country Cub, a mobile home park, located at 6000 Palm Canyon Drive in the City. (b) Pursuant to Section 66427.5 of the California Government Code, Owner has initiated the conversion of two parcels of real property in the City (known as El Dorado Mobile County Club [the "Property"]), into 377 condominium parcels and certain common areas (the "Conversion"). (c) On August 2, 2000, the City Council of City approved Owner's Tentative Tract Map No., TTM 28087, for the Property (the "Application"). (d) On June 4, 2003, the City Council of City approved Owner's Final Map No. 28087 for the Property (the "Final Map"). (e) Prior to approval of the Final Map, the Parties had executed that certain "Outline of Settlement Understanding Concerning El Dorado Mobile Home Park" (the "Outline"). (f) This Agreement is intended by the Parties to implement the intent of the Outline. 1.2 Parties to the Agreement. (a) CCU. The City is a charter city and municipal corporation of the State of California. The tern? "City" as used in this Agreement shall mean the City and each assignee or successor to the City's rights, powers and responsibilities. (b) Owner. The term "Owner" as used in this Agreement shall mean El Dorado Pahn Springs, Ltd., a California limited partnership, or, following a transfer of all of Owner's Remaining Interests (as defined below), any assignee of or successor to Owner's rights, powers, and responsibilities under this Agreement. Owner shall have the right, in its sole and absolute discretion but following notice to the City, to assign its rights and obligations to any affiliate of Owner (being any entity controlling, controlled by, or under common control with [RHC nap/Red Ihied 12 Wyndet Apeement7_9_031 DOC/07 1 003/3 4 00.010) )ro ,gGREE ENI Owner, whether now existing or in the future formed), provided that such assignee also receives all of Owner's then-Remaining Interests. For purposes of the foregoing, "Remaining Interests" means as of any time all common areas of the Property, all mobile home parks or spaces (the "Units") which at such time are owned by Owner (whether or not such Units are then in escrow for purchase), and all improvements owned by Owner on any of the foregoing, together with all of Owner's rights and obligations under any and all services contracts, leases and other agreements material to the ownership, operation and leasing of the foregoing, including this Agreement. "Remaining Interests" does not include any other real or personal property, contingent obligations, rights, privileges or obligations of Owner, each of which may be retained by Owner or transferred to any other entity without restriction and without affecting the assignment of the Remaining Interests and Owner's rights and obligations hereunder. (c) Third-Party Beneficiaries. This Agreement is solely between the Parties hereto for the benefit of the Parties hereto and their permitted successors and assigns. There are no third-party beneficiaries, express or implied, to this Agreement. Nothing in this Agreement relieves or discharges the obligation or liability of any third person(s) to any Party to this Agreement. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration the adequacy of which is hereby acknowledged, Owner and City hereby agree as follows: ARTICLE II. OWNER COVENANTS 2.1 Lower Income Resident Purchase Price Assistance. Owner covenants, for itself and any successor(s) or assignee(s), that the purchase price for each Unit on the Property shall be that price set forth in the PGP Valuation, Inc. appraisal, dated November 26, 2002, and thereafter t1irough the date which is one hundred eighty (180) days following delivery of the Final Public Report to each resident of the Property (the "Appraised Purchase Price") who is a resident of the Property as of the date of delivery of the Final Public Report. Owner further covenants, for itself and any successor(s) or assignee(s), that it will provide a Lower Income Resident purchase price assistance fund in an amount not less than Five Hundred Thousand Dollars ($500,000.00). Owner further covenants, for itself and any successor(s) or assignee(s), that it will afford a Lower Income Resident purchase price assistance (either in the form of down payment assistance or purchase price credit) in the amount of Five Thousand Dollars ($5,000.00) for the first 100 Units that are purchased by a Lower Income Resident (as that tern is defined in Section 50079.5 of the Health and Safety Code) who execute a written agreement to purchase the same on or before November 1, 2003;provided, Hoverer, that the escrow opened in connection with each agreement to purchase a mobile home pad or space by a qualifying Lower Income Resident shall close not later than March 1, 2004, unless the same is waived by Owner, in its sole and absolute discretion. 2.2 Market Rate Rent. Owner covenants, for itself and any successor(s) or assignee(s), that the rent for tenants_who are afforded rental protection pursuant to the City approved Tenant Impact Report for unsold Units shall be calculated pursuant to Government Code Section 66427.5, from and after the date of conversion, to a maximum of$610.00 per month until Owner is allowed, by law, to charge a greater amount. Notwithstanding the foregoing, if any party other than Owner (or any entity controlled by, controlling, or under common control with Owner) commences litigation regarding the proper amount(s) of market rent, then (a) nothing in the foregoing shall preclude Owner fi-om raising any defense or intervention or presenting any evidence, (b) nothing in the foregoing shall preclude Owner from seeking higher market rents in response to such litigation, and (c) if the court rules that a higher market rent is reasonable, then Owner shall be entitled to charge such higher rents. 2.3 Litigation. So long as there are no uncured breaches of this Agreement, then promptly after the Effective Date, Owner will use its best efforts to stay its hardship rent control litigation, consolidated case no. INC-023305 (consolidated with INC-025129) (the "Rent Case"), for a period continuing through the first anniversary of the Effective Date of this Agreement. So long as City has complied with its obligations herein, then on the first anniversary of the Effective Date of this Agreement, Owner will dismiss or caused to be dismissed the Rent Case, provided that nothing in the foregoing shall waive or release (or be deemed to waive or release) any other claim or cause of action which may be available to the Parties herein. ARTICLE 111. CITY COVENANTS 3.7 Moderate Income Resident Purchase Price Assistance. (a) City Covenants, for itself and any successor(s) or assignee(s), that it will provide a Moderate hmcome Resident purchase price assistance fund in an amount not less than Five Hundred Thousand Dollars ($500,000.00). City further covenants, for its self and any successor(s) or assignee(s), that it will afford a Moderate Income Resident Purchase Price Assistance (in the form of a so-called "silent second") in the amount of Five Thousand Dollars ($5,000.00) for the first 100 mobile home pads or spaces that are purchased by a Moderate Income Resident (as defined in Section 50093 of the Health and Safety Code). 3.2 Regulatory Forbearance. City further covenants that it will not enact an ordinance or adopt any regulation that would impose any new restriction(s) or any new requirenment(s) on this Conversion, or the Owner's actions to implement the same (including, without limitation, the sale of mobile home pads or spaces, the renting of the park to non-purchasing residents and others, and the rental amounts with respect thereto), or to regulate any other matter which is the subject of this Agreement, including, without limitation, the requirements to obtain any additional permit(s) or certificate(s) or file any additional notice(s) not required by federal, state or local law as of the June 1, 2003. This forbearance shall not apply to City's adoption of ordinances or regulations of general application within City, or to the enforcement of existing City codes, standards, requirements,rules, or ordinances in effect as of the Effective Date. 3.3 Litigation Forbearance. City farther covenants that it will not file any complaint or initiate or participate as a party in any administrative or legal action against Owner, the Property, the Site or otherwise pertaining to the Conversion, the Final Map, the matters described in Section 2.2, or any other proceeding contesting the Conversion of the Property to resident condominium ownership or the application of State Map Rents as defined in California Government Code Section 66427.5 and the City-approved Tenant Impact Report, provided, however, that nothing in the foregoing shall prevent or be deemed to prevent City from responding to any subpoena or deposition, or request for records and other public documents pursuant to the California Public Record Acts, or other lawful process of any court or tribunal; and provided, further, that nothing in the foregoing shall waive or be deemed to waive the City's ability to enforce against Owner, or the Property, any law of general applicability existing as of the Effective Date. ARTICLE 1V. PRESERVATION OF RIGHTS AND OBLIGATIONS 4.1 Improvements. Nothing in this Agreement alters, or shall be construed to alter, Owner's rights or obligations with respect to the maintenance or alteration of improvements located on the Property. Such rights and obligations shall be determined solely by reference to federal, state, and local laws applicable to the Property and any enforceable agreements to which Owner is a party or which otherwise bind the Property and not by reference to this Agreement. 4.2 Personal Property. Nothing in this Agreement alters, or shall be construed to alter, Owner's rights with respect to any personal property owned or leased by it, whether or not located at the Property, and Owner may dispose of, return, sell, exchange, lend or replace any item of such personal property in Owner's sole and absolute discretion. ARTICLE V. BREACII OF AGREEMENT 5.1 Breach Subject to Cure. It shall be a breach of this Agreement if any Party takes any action which violates, or otherwise fails to implement, a provision of this Agreement applicable to such Party, and such action is not rescinded or otherwise cured within ten (10) days of written notice from the non- breaching Party. 5.2 Remedies. Upon the expiration of a cure period under Section 5.1, the non-breaching party shall have all remedies available to it at law or equity, including the right to seek monetary damages, specific performance or other equitable relief. In addition to the foregoing remedies and damages, and not as a limitation, the non-breaching party may at its election (in its sole discretion) (a) suspend the performance of its covenants under Article II or Article III, as the case may be, without liability to the breaching Party, or (b) continue to perform such covenants and thereby continue to bind the breaching Party to the performance of all of the breaching Party's covenants. The Parties agree that Owner's monetary damages in the event of a breach by City will include, but not be limited to, the aggregate of all discounts granted under Section 2.1 and any increase in rent to which Owner would have been entitled under Section 2.2. ARTICLE VI. MISCELLANEOUS 6.1 Binding Effect. This Agreement applies to, encumbers, and binds Owner and City and each of their-successors and assigns. 6.2 Governing Law; Choice of Forum: Service of Process. (a) This Agreement shall be construed in accordance with and be governed by the laws of the State of California. (b) Service of process on City shall be made by personal service upon the City Clerk of City, or in such manner as maybe provided bylaw. Service of process on Owner shall be made by personal service upon an officer of Owner or in such manner as may be provided by law, whether made within or without the State. 6.3 Fees and Other Expenses. Except as otherwise provided herein, each of the Parties hereto shall pay its own fees and expenses, including attorneys' fees and costs, in connection with negotiation and preparation of this Agreement. 6.4 Conflict of Interest. No appointed or elected official or employee of the City shall have any personal interest, direct or indirect, in this Agreement nor shall any official or employee participate in any decision relating to the Agreement which affects his interests or the interests of any corporation, partnership, or association in which he is directly or indirectly interested. 6.5 Notices. All notices, demands, consents, requests and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed conclusively to have been duly given (a) when hand delivered to the other Party; (b) three (3) Business Days after such notice has been sent by United States mail via certified mail, return receipt requested, postage prepaid, and addressed to the other Party as set forth below; (c) the next Business Day after such notice has been deposited with a national overnight delivery service reasonably approved by the Parties (Federal Express, United Parcel Service and U.S. Postal Service are deemed approved by the Parties), postage prepaid, addressed to the Party to whom notice is being sent as set forth below with next-business-day delivery guaranteed, provided that the sending Party receives a confirmation of delivery from the delivery service provider; or (d) when received by the recipient Party when sent by facsimile transmission or email at the number or email address set forth below (provided, however, that notices given by facsimile or email shall not be effective unless either (i) a duplicate copy of such notice is promptly sent by any method permitted under this Section 6.5 other than by facsimile or email; or (ii) the receiving Party delivers a written confirmation of receipt for such notice either by facsimile, email or any other method permitted under this Section. Any notice given by facsimile or email shall be deemed received on the next Business Day if such notice is received after 4:00 p.m. (recipient's time) or on a Business Day. Unless otherwise provided in writing, all notices hereunder shall be addressed as follows: If to Owner: EL DORADO PALM SPRINGS, LTD. 10100 Santa Monica Boulevard, Suite 2030 Los Angeles, California 90067 Attention: James F. Goldstein Facsimile: 310-556-0106 With a copy to: Gilchrist & Rutter Professional Corporation 1299 Ocean Avenue, Suite 900 Santa Monica, California 90401 Attention: Richard H. Close, Esq. Facsimile: 310-3 94-4700 If to the City: City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, California 92262 Attention: City Clerk With a copy to: Aleshire & Wynder, LLP Tower 17, 18881 Von Kansan Avenue Suite 400 Irvine, California 92612 Attention: William W. Wynder, Esq. Facsimile: (949) 223-1180 6.6 Amendments. This Agreement may not be changed orally, but only by an amendment in writing signed by both Owner and the City. 6.7 No Prior Agreements. This Agreement supersedes and replaces any and all prior agreements, proposed agreements, negotiations and communications, oral or written, and contains the entire agreement between the Parties as to the specific subject matter hereof and any and all prior agreements, understandings or representations are hereby terminated and canceled in their entirety. Each Party hereby acknowledges that no other Party hereto, nor its agents or attorneys, have made any promises, representations or warranties whatsoever, expressed or implied, not contained berein, to induce such Party to execute this Agreement, and each Party acknowledges that it has not executed this Agreement in reliance on any such promise, representation or warranty not contained herein. 6.8 Effectiveness. The Effective Date of this Agreement shall be the date when this Agreement has been executed Owner and approved by City's City Council. The Parties acknowledge and agree that the Effective Date set forth in the preamble of this Agreement may be filled in by hand by either Party upon satisfaction of the conditions required in this section. 6.9 Counterparts. This Agreement may be executed in two or more separate counterparts, each completely executed set of which, when so executed, shall be deemed to be an original. Such counterparts shall, together, constitute and shall be one and the same instrument. The Parties agree to recognize execution of this Agreement by facsimile signatures; provided, however, that such execution by facsimile shall not be effective unless a manually executed copy of the signature page is promptly sent by United States, postage prepaid, and such manually signed page is actually received by the other Party within ten (10) days of its execution. 6.10 Termination. This Agreement shall terminate and be of no further force and effect on the tenth (IOth) anniversary of the Effective Date. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first set forth above. "OWNER" El Dorado Palm Springs, Ltd. a California limited partnership By: Goldstein Properties, Inc. A California Corporation its sole G neral Partner Dated: By: ✓ � �{� t J . annes F. Goldstein Its: President "CITY" CITY OF PALM SPRINGS, a municipal corporation of the State of California Dat By: frame: William G. Kleindienst Its: Mayor AT By: City Clerk Approval As To Form: Aleshire &Wynder, LLP By: j — City Attorney I ��� 07/22/2003 TUE 15:00 FAX 002/003 signature page is promptly sent by United States, postage prepaid, and such manually signed page is actually received by the other Party within ten (10) days of its execution, 6.10 Termination. This Agreement shall terminate and be of no further force and effect on the tenth (101b) anniversary of the Effective Tate. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first set forth above. "OWNER" El Dorado Palm Springs, Ltd. a California limited partnership By: Goldstein Properties,Inc- A California Corporation its sole General Partner Dated: By: .lames F. Goldstein Its: President "CITY" CITY OF PALM SPRINGS, a municipal corporation of the State of California Dated: By: Name: William G. Kleindienst Its: Mayor ATTEST: By: City Clerk Approval As To Forn: Aleshire & Wynde LLP By: City Attot