HomeMy WebLinkAbout00454C - AGUA CALIENTE PRAIRIE SCHOONER CONSTRUCTION LICENSE APN 508-055-008 508-055-009 508-055-007 Agua Caliente Band of CahuiW
Indians - Construction License
AGREEMENT #454C Amend 1
R1226, 9-3-03
FIRST AMENDED LICENSE AGREEMENT
THIS FIRST.AMENDED LICENSE AGREEMENT ("Agreement") is made and entered
into as of�� � ;✓� �r��s _�, 2003, by and between the COMMUNITY
REDEVELOPMENVAGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate
and politic ("Owner" or "Agency") and the AGUA CALIENTE BAND OF CAHUILLA
INDIANS ("Tribe"), with reference to the following facts:
A. Owner is the owner in fee simple of the real property commonly known as the
Prairie Schooner Parcel ("Owner's Parcel") which is 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.
B. On or about November 1, 2002, Owner and the Tribe entered into a Construction
License Agreement ("Prior Agreement"), whereby the parties agreed to the Tribe's initial use of
the Owner's Parcel for the purpose of facilitating the construction of the Tribe's adjacent parcel
for a proposed casino development.
C. The parties desire to amend the Prior Agreement to revise a number of the terms,
including, but not limited to, the permissible uses of the Owner's Parcel, the consideration and
the term of the Agreement, to expand the Tribe's use of the Owner's Parcel pursuant to the
conditions set forth herein for the purpose of constructing and operating a parking lot which will
be used, on a non-exclusive basis, by the Tribe in conjunction with the Tribe's adjacent casino.
D. The parties also desire to negotiate diligently and in good faith to prepare an
agreement ("DDA") whereby the Tribe would acquire a long-term interest in the Owner Parcel
and also acquire additional property for the City's benefit for construction staging purposes in
connection with the City's expansion of its Convention Center. However, for the Agency to
lease the Owner Parcel, certain procedural requirements are necessary, including approval of the
DDA. Nothing shall obligate Agency to approve the DDA pursuant to this Agreement. The
DDA will be subject to all rules, regulations, standards and criteria set forth in the Owner's
Redevelopment Plan, the City's General Plan, applicable specific plans and zoning regulations
and this Agreement. The DDA will generally be in the form negotiated by the Owner with other
development entities subject to the terms the Owner and the Tribe mutually agree upon.
NOW, THEREFORE, in consideration of the foregoing, the parties agree as follows:
1. Modification of Prior Agreement Section 2: The entire Section 2,
"Consideration for License," as contained in the Prior Agreement is hereby deleted and replaced
with the following:
1003/031/25284 v6
11
2. Consideration for License. In consideration of the granting
of this license, the Tribe shall, at its sole cost and expense, undertake the
following tasks:
2.1 Design a "Parking Lot" which will provide up to
five hundred fifty (550) parking spaces in conformance with all City
standards which incorporates landscaping of the Owner's Parcel.
2.2 Obtain all approvals and entitlements to construct
the Parking Lot, including approval of the plans for the Parking Lot by the
City's Planning Commission.
2.3 Construct all improvements on the Owner's Parcel
within ninety (90) days of the approval by the Planning Commission.
2.4 Make an annual contribution to the City in the
amount of seven hundred thousand dollars ($700,000), in equal monthly
installment payments which shall be due to the City on or before the tenth
(1 Oth) day of each month, commencing July 10, 2003. This payment shall
be allocated as provided in Section 4 below.
2.5 Perform all procedures necessary to address any
Indian artifacts or other existing Indian historical resources located on the
Owner's Parcel pursuant to applicable federal, state, and tribal
requirements so that Tribe will agree that no additional mitigation
measures are needed when the property is developed.
2. Modification of Prior Agreement Section 3: The entire Section 3, "Grant
of License," as contained in the Prior Agreement is hereby deleted and replaced with the
following:
"3. Grant of License.
3.1 Grant of License by Owner. Owner hereby grants
to Tribe a license to enter upon the Owner's Parcel to perform the
consideration specified in Section 2 above and to utilize the property for
constructing and operating a parking lot which will be used by the Tribe
not only for construction staging, but also in conjunction with the Tribe's
adjacent casino and including a valet parking area of two hundred (200)
parking spaces. Said license shall be nonexclusive except as provided in
Section 5 below and Owner shall retain the right to enter the Owner's
Parcel at any time.
3.2 Term of License. The license granted to the Tribe
pursuant to Section 3.1 above shall commence as originally provided in
the Prior Agreement, but shall terminate on July 31, 2005, provided that
with an agreement in writing, the Agreement may be further extended. It
is intended that the DDA can be prepared and approved by said date.
1003/031/25284 v7
3.3 Early Termination. Owner may terminate this
Agreement at its sole discretion at any time upon providing prior written
notice to Tribe one (1) year in advance of the actual termination date.
3.4 Condition of Owner's Parcel. Tribe shall return the
Owner's Parcel in good condition with all improvements specified herein
to the satisfaction of the Owner upon the expiration or termination of this
Agreement."
3. New Section 4: A new Section 4, "Repayment of Improvement Cost,"
shall read as follows:
4. Repayment of Improvement Cost
4.1 Allocation of Payment. The seven hundred
thousand dollar ($700,000) annual payment shall be allocated 38 percent
to the Agency as a payment of rent and 62 percent to the City to pay for
tourism promotion, to include advertising, financing and operation of the
Convention Center and visitor center, and for the provision of services
needed for tourism. The payments shall be made with separate checks,
each month.
4.2 Repayment of Parking Improvement Cost. The
parties agree that the cost to the Tribe to construct the Parking Lot will not
exceed two million two hundred thousand dollars ($2,200,000). It is
agreed that the Owner shall repay the Tribe's actual cost to construct the
Parking Lot, interest free, over ten (10) years, in annual payments of two
hundred twenty thousand dollars ($220,000). Any increase in the cost to
construct the Parking Lot must be consented to by the Owner in writing
before commencement of construction and said increased amount shall be
repaid, interest free, over ten (10) years in annual payments. Each month
that Tribe makes the payments specified above, the Tribe shall deduct
$18,333.33 from the payment to the Owner as the Owner's repayment of
said improvement cost.
4.3 Maintenance and Utilities. Although City will
perform all maintenance of the Owner's Parcel and will pay for all utilities
necessary to operate the Parking Lot, the Tribe agrees that it shall be
responsible for the payment of one-half(1/2) of all of the costs relating to
the maintenance and utilities for the Owner's Parcel and Parking Lot. The
City shall submit an accounting of all such costs to the Tribe on a monthly
basis, in arrears. The Tribe's portion of such costs shall be added to the
Tribe's monthly payment obligation to the Agency on a monthly basis, in
arrears.
4.4 Failure to Approve DDA. In the event the Agency
does not approve the DDA and approve a long-term lease of the Owner
1003/031/25284 0
Parcel to the Tribe, then this License Amendment shall terminate at the
conclusion of its term. In such event, the Tribe may discontinue payment
of the consideration stated in Section 2 and Agency may discontinue
repayment of the parking improvement cost. Neither party shall have any
liability to the other hereunder, so long as they are not in default."
4. New Section 5: A new Section 5, "Use of the Parking Lot," shall read as
follows:
"5. Use of Parking Lot.
5.1 Reserved Spaces. A portion of the Parking Lot
consisting of approximately two hundred (200) spaces, as shown in
Exhibit`B" attached and made a part hereof, is reserved for Tribe for valet
parking purposes.
5.2 Use By the Convention Center. The Tribe agrees to
meet with representatives of the Palm Springs Convention Center
("Convention Center") on a quarterly basis to prepare a calendar setting
forth those dates during which the Convention Center usage will be at a
maximum so that the entire Parking Lot will be needed, other than the
reserved spaces described in Section 5.1 and on Exhibit B. When the
Parking Lot is being used by the Convention Center, on the dates agreed
upon by the parties, the Convention Center may collect a fee in connection
with the use of the Parking Lot.
5.3 Public Use. At times when the Parking Lot is not
being used by the Convention Center, except for the reserved spaces
described in Section 5.1 and on Exhibit B, the approximately three
hundred (300) remaining spaces in the Parking Lot shall be open for the
use of the general public."
5.4 Convention Center Construction Staging. The City
had planned to use Owner's Parcel for construction staging in connection
with the planned expansion of the Convention Center. No later than
November 1, 2003, the Tribe will obtain possession of five (5) acres of
real property in the vicinity of the Convention Center which would be
available to the City without charge for up to three (3) years for such
purposes.
5. Modification of Prior Agreement Section 4: The entire Section 4,
"Indemnity and Insurance," as contained in the Prior Agreement is hereby renumbered Section 6.
6. Modification of Prior Agreement Section 5: The entire Section 5,
"Notices," as contained in the Prior Agreement is hereby renumbered Section 7. Moreover, the
address for copies of all documents to Owner shall be deleted and replaced with the following:
1003/031/25284 v7
"With Copy to: Aleshire & Wynder, LLP
18881 Von Karman Avenue, Suite 400
Irvine, California 92612
Attn: David J. Aleshire"
7. New Section 8: A new Section 8, "Sovereign Immunity Waiver" states as
follows:
"8. 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 Comity, California, (1) injunctive relief to compel the Tribe to
comply with the specific duties of 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.
8. Modification of Prior Agreement Section 6: The entire Section 6,
"General Provisions," as contained in the Prior Agreement is hereby renumbered Section 9.
9. New Section 10: A new Section 10, "Full Force and Effect" states as
follows:
"10. Full Force and Effect. Except as set forth herein, the
Agreement shall remain unmodified and in full force and effect.
[SIGNATURE PAGE FOLLOWS:]
1003/031/25284 v7
IN WITNESS WHEREOF,the parties have executed and entered into this
Agreement as of the date first written above.
"TRIBE"
AGUA CALIENTE BAND OF
CAHUILLA INDIANS
600 East Tahquitz Canyon Drive
P CA 92262
By.
Name: Fyn.' L_P�tildOtC
By:
Name:
"OWNER"
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, a public
body, corporate and politic
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attl epcutivree Di cto
BY�
Its: "� f4�.�e✓ -6�
ATTEST:
r
Assistant Secretar U3�� %I.� 'c> ' Cut�k'u�ifE96:�igY7f G;IImi2GF'r',
APPROVED AS TO FORM:
Davi eshire, Agency Counsel
1003/031/25284 v7
EXHIBIT"A"
OWNER PARCEL-LEGAL DESCRIPTION
Assessor's Parcel Numbers 508-055-007, 508-055-008, and 508-055-009 on Assessor's
Map Book 508 Page 05, Riverside County, California as shown below:
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RESERVED AREA
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I . Agua Caliente Band of
Cahuilla Indians
Construction License
AGREEMENT #454C
R7195, 10-16-02
CONSTRUCTION LICENSE AGREEMENT
THIS CONSTRUCTION LICENSE AGREEMENT (the "Agreement") is made
and entered into as of November 1, 2002 by and between the Community Redevelopment
Agency of the City of Palm Springs, a public body, corporate and politic (the "Owner") and the
Agua Caliente Band of Cahuilla Indians (the "Tribe"), with reference to the following facts:
A. Owner 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 "Owner
Parcel". Pursuant to this Agreement, and subject to the terms and conditions set forth herein, the
Owner is granting to the Licensee a license to enter upon and utilize a portion of the Owner's
Parcel pursuant to the conditions set forth herein for the purpose of facilitating the construction
of the Tribe's adjacent parcel for a proposed casino development.
B. As consideration for the use of the Owner's Parcel pursuant to this
Agreement, Tribe has agreed to provide certain improvements to the Owner's parcel including
grading, graveling and certain landscaping improvements and the performance of this work is
fair compensation for the temporary use of Owner's Parcel.
NOW, THEREFORE, in consideration of the foregoing, the parties agree as
follows:
1. Definitions.
(a) The term "Permittees" means (a) all employees, agents, contractors,
visitors, invitees, and licensees of Owner and the Tribe, respectively; and (b) any person
or entity legally entitled to the use and occupancy of space in any improvements situated
on the Owner's Parcel, and their respective employees, agents, contractors, visitors,
invitees, licensees, and subtenants.
(b) The term "Party or Parties" means Owner or Tribe, their grantees,
successors, and assigns who become owners of any portion of the respective parcels. At
such time as any person becomes an owner of any portion of a parcel, he shall be deemed
to be a Party to this Agreement and shall be conclusively presumed to have taken subject
to and assumed all of the obligations and burdens set forth in this Agreement pertaining
to the parcel of which their property is a part and to have automatically granted and
conveyed all easements described in this Agreement to all other Parties, their successors
and assigns, immediately upon such Party's acceptance of delivery of a deed granting and
conveying any portion of a parcel to such Party.
2. Consideration for License. In consideration of the granting of this license,
the Tribe shall undertake the following tasks at their sole expense:
IRV#25612 d2
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2.1 Remove all existing structures from the Owner's Parcel, including
electrical sheds and unused poles, concrete slabs, conduit, or septic tanks prior to November 1,
2002;
2.2 Grade and gravel the Owner's Parcel prior to November 1, 2002
with such gravel to be removed by Tribe prior to the termination of the Agreement at the option
of Owner;
2.3 Provide the landscaping and improvements set forth in Exhibit `B"
attached hereto and incorporated herein by this reference;
2.4 Perform all procedures necessary to address any Indian artifacts or
other existing Indian historical resources located on the Owner's Parcel pursuant to applicable
federal, state, and tribal requirements so that Tribe will agree that no additional mitigation
measures are needed when the property is developed; and
2.5 Provide that a portion of Owner's Parcel, as shown in Exhibit C, is
reserved by Owner for parking for use by Convention Center.
3. Grant of License
3.1 Grant of License by Owner. Owner hereby grants to Tribe a
license to enter upon the Owner's Parcel to perform the consideration specified in Section 2
above and to utilize the property for staging and facilitation of construction on Tribe's adjacent
Parcel. Said license shall be nonexclusive and Owner shall retain the right to enter the Owner's
Parcel at any time.
3.2 Term of License. The license granted to the Tribe pursuant to
Section 3.1 above shall commence on November 1, 2002 and terminate on January 31, 2004,
provided that with mutual agreement the Agreement may be further extended.
3.3 Early Termination. Owner may terminate this Agreement at its
sole discretion at any time upon providing sixty (60) days written notice to Tribe.
3.4 Condition of Owner's Parcel. Tribe shall return the Owner's
Parcel in good condition with all improvements specified herein to the satisfaction of the Owner.
4. 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
Owner 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 Owner's Parcel in accordance with the City's
standard requirements and as approved by the City Risk Manager
IRV 925612 Q
_2_
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5. Notices. Any notice to be given under this Agreement 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:
Owner: The Community Redevelopment Agency
of the City of Palm Springs
P.O. Box 2743
Palm Springs, CA 92263
Attn: Assistant Secretary
With Copy to: Burke, Williams & Sorensen, LLP
18301 Von Karman Ave, Suite 1050
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.
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.
6. General Provisions.
6.1 California Law. This Agreement shall be interpreted, enforced and
governed by and under the laws of the State of California and applicable Federal laws.
6.2 Transfers. Nothing contained in this Agreement 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.
6.3 Miscellaneous. This Agreement may be modified only by a
written agreement signed by the owners of the respective Parcels. This Agreement shall be
binding on and benefit each successive owner of the Parcels. If any action or proceeding is
commenced by any Party to enforce the terms of this Agreement, the prevailing Party shall be
entitled to recover from the other Party reasonable attorneys' fees and costs in addition to any
other relief awarded by the court. Time is of the essence of this Agreement. The Parties'
respective rights and remedies under this Agreement are cumulative with and in addition to all
other legal and equitable rights and remedies which the Parties may have under applicable law.
[SIGNATURE PAGE FOLLOWS:]
IRV#25612 v2 -3_
"TRIBE"
By.
Name:
By:
Name:
Agua Caliente Band of Cahuilla Indians
600 East Tahquitz Canyon Drive
Palm Springs, CA 92262
"OWNER"
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, a public
body, corporate and politic
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262 Q
Attn: Executive Director By:
David H. Read -"
Its:
Executive Director
ATTEST:
Assistant Secretary Appd.OVED BY THE commF nny nmv.
AGEN :,y By RES, RIO- &—baZ.
APPROVED AS TO FORM:
David shire, Agency Counsel
IRV#25612 Q
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EXHIBIT "A"
OWNER PARCEL
LEGAL DESCRIPTION
For the period of the agreement, the Tribe shall have exclusive use of the parcel shown
below, with the exception of the easternmost 170 feet of parcel 508-055-007, which shall
be reserved for use by the Convention Center.
IRV#25612 v2
A-1
EXHIBIT °B"
IMPROVEMENTS TO OWNER'S PARCEL
Remove all existing structures from the Owner's Parcel, including
electrical sheds and unused poles, concrete slabs, conduit, or septic tanks;
Grade and pave with gravel the Owner's Parcel and provide the
landscaping and improvements set forth as follows:
Install landscaping in parcel 508-055-009 as an additional buffer between
the site and the Hilton Resort.
dust. Install adequate gravel ground cover on graded areas to reduce blowing
Perform all procedures necessary to address any Indian artifacts or other
existing Indian historical resources located on the Owner's Parcel pursuant to federal,
state, and tribal requirements.
IRV 925612 V2 B-1
EXHIBIT "C"
RESERVED AREA
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