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HomeMy WebLinkAbout00433C - PHILIP CLEARY NPC STEVENS NEGOTIATE Philip J. Cleary Agr to Negotiate AGREEMENT #433C Amend 1 R1207, 1-15-03 FIRST AMENDMENT TO EXCLUSIVE AGREEMENT TO NEGOTIATE THIS FIRST AMENDMENT TO EXCLUSIVE AGREEMENT TO NEGOTIATE ("Amendment") is entered into this q='day of �-/,v 2003 (the "Effective Date") by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic, ("Agency") whose offices are located at P.O. Box 2743, 3200 East Tahquitz Canyon Way, Palm Springs, California 92263 and Philip J. Cleary ("Developer"). RECITALS A. On January 4, 2002, Agency and Developer entered into that certain Exclusive Agreement to Negotiate("Original Agreement") pursuant to which Agency and Developer agreed to work mutually on the development of a live/work condominium project on 2.75 acres at the southwest comer of North Palm Canyon Drive and Stevens Road in Palm Springs, as more particularly described therein. B. Agency and Developer desire to amend the terms of the Original Agreement as more particularly described herein. C. Any capitalized terms not defined herein shall have the meanings ascribed to them in the Original Agreement. The Original Agreement,as modified by this Amendment,is hereinafter referred to as the "Agreement." NOW, THEREFORE, the parties hereto agree as follows: Section 1. The period of exclusive negotiation stated in Section 2 of the agreement is hereby extended to July 15, 2003, unless further extended as further provided in Section 2. Section 2. Except as otherwise provided, all terms and conditions of the Original Agreement shall be as stated therein. IN WITNESS WHEREOF the Agency and Participant have executed this Agreement as of the date first written above. "AGENCY" ATTEST: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate --. and politic w r '-IV/ AssistAt Secre ary _ Chairman - APPROVED AS TO FORM: BURKE WILLIAMS &SORENSEN, LLP By: Age cSunsel "DEVELOPER" Phili teary� ''��pt4 "�"y���'tpp�yf��Y �iF;�ie^/���3FJ7u�D4''�W1`tf trry.[L*V. Philip J. Cleary Exclusive Agr to Negotiate AGREEMENT #433C R1155, 12-5-01 EXCLUSIVE AGREEMENT TO NEGOTIATE- - - - — Phillip CleaN THIS EXCLUSIVE AGREEMENT TO NEGOTIATE "AGREEMENT' 11r("AGREEMENT') ,, is made this � day of 2000I�,-by and between the PALM SPRINGS COMMUNITY REF VELOPMEN' AGENCY ("AGENCY"), and PHILIP J. CLEARY ("DEVELOPER"). RECITALS The parties entered into this Agreement on the basis of the following facts,understandings,and intentions: A. The Agency is a public body, corporate and politic, exercising governmental functions and powers and organized and existing under the Community Redevelopment Law of the State of California (Health and Safety Code Sections 33000, et seq.). B. The Agency desires to effectuate the Redevelopment Plan for Merged Project Area# 1,formerly Redevelopment ProjectArea No.6(North Palm Canyon),by providing for the development of a mixed use commercial/residential project atthe southwest comerof Stevens Road and North Palm Canyon Drive ("the Site"). C. The Developer desires to construct a mixed use project at the Site. The term "Developer"as used herein includes the principals, partners, and joint venturers of Developer and all obligations of Developer herein shall be the joint and several obligations of such principals, partners, and joint venturers. D. The Agency and Developer desire,for the period setforth herein,to negotiate diligently and in good faith to prepare an agreement whereby the Developer would develop such a mixed use project on the site. NOW,THEREFORE,and in consideration of the mutual covenants hereinafter contained,it is mutually agreed upon by the parties as follows: SECTION 1. NATURE OF NEGOTIATIONS. A. Good Faith. The Agency and the Developer agree that for the period set forth in Section 2 herein they will negotiate diligently and in good faith to prepare and enter into an agreement (the"DDA")consistentwith the provisions of this Agreementforthe development of a mixed use project on the Site specified herein. The development will be subject to all rules, regulations, standards, and criteria set forth in the Redevelopment Plan, the City's General Plan, applicable specific plans and zoning regulations, and with this Agreement. B. Site. The Project shall be located upon the following real property,as shown in the"Site Map,"attached hereto as Exhibit"A"and incorporated herein by this reference. The Site is currently divided into two ownerships, the Community Redevelopment Agency and the City of Palm Springs, herein designated as the"Casa del Camino Parcel" and the"Reservoir Parcel." C. Construction and Ownership Concept. The Developer's interest shall be fee. The design shall be consistent with the Agency's and the City's design guidelines. Developers architect shall work with the City's design guidelines to create a harmonious and attractive mixed use commercial/residential project with a distinct identity. The Developer is responsible for financing and constructing all improvements upon the Site. The commercial/residential project shall consist of at least 12 condominiums and a minimum of 7,000 square feet of commercial space. The Site will be subject to a declaration of covenants, conditions, and restrictions to govern the continued operation of the commercial space and condominiums. D. Financial Provisions. The Developer is responsible for acquisition of the site and financing and constructing all improvements upon the Site. Developershall payforall necessary public improvements and pay all City's fees for processing the Project,without assistance from the Agency. - E. Schedule. The Developer's goal is to develop the commercial/residential project by December 31, 2003. The DDA shall contain a Schedule of Performance. F. Use and Transfer Restrictions. The DDA will generally be subject to restrictions on use and transfer during construction and for a specified period thereafter through recorded restrictions(i) to assure that the use will be consistent with and promote the commercial/residential project, (ii) to prevent speculation, (iii)to assure that any transferee has the resources,capability and experience to successfully develop the project,(iv)to assure long-term maintenance of the residential and commercial projects in attractive condition, and (iv) to provide an adequate financial return to the Agency. G. Property Acquisition. The Reservoir Property is, at the time of execution of this agreement, owned by the City of Palm Springs. During the period of this Agreement, the City shall convey the parcel to the Community Redevelopment Agency, to allow both parcels to be covered by the Disposition and Development Agreement between the Agency and the Developer. H. Exclusivity. The Agency agrees for the period set forth in Section 2 that it will not negotiate with or enter into any agreement with any other entity for development of the Site, and the Developer agrees not to negotiate with any other person or entity regarding the development of a commercial/residential project within the territorial jurisdiction of Palm Springs or within 3 miles of the boundary thereof without the approval of Agency. SECTION 2. PERIOD OF NEGOTIATIONS. The period of negotiation shall be one hundred eighty(180)days from the date this Agreement is signed by the Agency,and this Agreement shall terminate after the expiration of such period unless extended as follows: A. For sixty (60) days if an agreement has been prepared by the Agency and executed by the Developer,and has been submitted to the Agency but has notyet been approved by the Agency Board; or B. For thirty(30)days if the major business terms have been agreed to and the Executive Director determines that further negotiations are likely to result in a written agreement; or C. By mutual agreement of the parties. Developer understands and acknowledges that if negotiations culminate in an agreement,such agreement shall be effective only after and if the agreement has been considered and approved by the Agency Board after public hearing thereon as required by law. SECTION 3. DEVELOPER'S RESPONSIBILITIES. During the period of negotiation, Developerwill prepare such studies, reports,and analysis as shall be necessaryto permit Developerto determine the feasibility of the commercial/residential project The Developer shall fully cooperate in the development of the Project design and financing plan. During the period of negotiation and as requested by the Agency, the Developer shall submit to the Agency the following: A. Full disclosure of Developer's principals, partners, joint venturers, negotiators, consultants, professional employees, or other associates of the Developer who are participants or principals of the Project, and all other relevant information concerning the above. B. Statementof financial condition in sufficient detail to demonstrate Developer'sfinancial capabilities,those of its principals,partners,jointventurers,and those of its prospective Developers to satisfy the commitments necessitated by the Project. To the extent Developer wants such financial statements to remain confidential,they sh4;l be supplied to theAgency only if the confidentiality of the statements can be maintained. C. All information necessary for the design of the Project to meet the Developer's reasonable requirements. In addition,Developer shall take all actions necessary to obtain construction and permanent financing. The Developer shall negotiate exclusively with the Agency's negotiating team and with no other persons unless expressly authorized to do so by the Agency's negotiating team. During the period of negotiations, no statements will be made by the Developer to the media without the approval of the Agency's negotiating team. No prepared statements shall be released to the media Without the mutual consent of the respective negotiating teams. SECTION 4. AGENCY'S RESPONSIBILITIES. A. Preparation of Agreement. If agreement is reached on the business terms for inclusion in the agreement, the Agency shall prepare such agreement for consideration by the Developer. Agency's expenses shall be chargeable against the Good Faith Deposit. B. Zoning. The Agency will undertake all acts necessary to assist Developer in securing necessary permits as may be necessary to permit the commercial/residential development at the Site. SECTION 5. GOOD FAITH DEPOSIT. Concurrently with the execution of this Agreement,Developershall submitto theAgency a good faith deposit in the sum of Five Thousand Dollars ($5,000.00) in the form of a cash deposit, cashiers' check, irrevocable letter of credit, or otherform of security acceptable to the Agency to insure that the Developer will proceed diligently and in good faith to negotiate and perform all of the Developer's obligations under this Agreement. If the deposit is in cash or a certified cashiers' check, it shall be deposited in an interest-bearing account of the City. Interest, if any, shall be added to the deposit and held as additional security for the Developer's obligations hereunder. Upon termination of this Agreement the balance, less charges deducted from the deposit pursuant to section 4(A), shall be returned to the Developer provided that the Developer has negotiated diligently and in good faith and carried out its obligations hereunder. If Developer has failed to do so, in as much as the actual damages which would result from a breach by Developer of its obligations under this Agreement are uncertain and would be impractical or extremely difficultto determine,Agency shall be entitled to retain the entire amount of said deposit, as liquidated and agreed damages. It is further understood that the DDA will require an increase in the good faith upon execution of the DDA. The aggregate good faith deposit then required shall be at least Ten Thousand Dollars ($10,000.00). SECTION 6. MISCELLANEOUS. A. Brokerage commission. The Agency has retained the services of Group One Realty ('Broker") during the negotiation of this agreement. The Agency has agreed to pay the Broker the agreed-upon commission, per the brokerage agreement, if this Developer acquires the property from the Agency. The commission shall be paid on a pro rata basis by the City and Agency if the parcels remain under separate ownership upon closing. B. Appraisal of Properties. The Developer has offered and the Agency has preliminarily determined that a price of$400,000 is reasonable for the two properties, based on a previous listing for the property. It is the opinion of both parties that this amount likely represents a fair market price for the parcels. Upon the successful negotiation of a Disposition and Development Agreement between Agency and Developer, however, both properties shall be conveyed at fair market value based on an MAI appraisal. Agency shall commission such appraisal, which shall be paid from the Good Faith Deposit described in Section 5. Should the appraised value exceed the offering price, Developer shalt have the right to withdraw from this Agreement without penalty. C. Ownership of Documents. If the negotiations contemplated by this Agreement do not result in the execution of an agreement, Developer shall transfer to Agency copies of any reports, studies,analysis,site plan layouts,development cost estimates,engineering studies,memorandums, or similar documents regarding the proposed development and prepared during the period of negotiations,which copies shall become the property of Agency. Such transfer shall be made without any representation or warranty by the Developer as to the accuracy or sufficiency of the contents of such documents and shall be made subject to the rights of the preparers of such documents including, without limitation, the copyright(if any) associated with such documents. D. Purpose of Contract. It is expressly understood and agreed by the parties hereto that this is an Agreement regarding the conduct of contract negotiations only and does not convey any interest in the property whatsoever. it is further agreed and understood that this Agreement does not imply any obligation on the part of the Agency to enter into any agreement that may result in negotiations contemplated herein. E. Amendment. This Agreement may only be amended by a document in writing signed by the parties hereto. F. Time forAcceptance. ThisAgreement,when executed bythe Developerand delivered to the Agency, shall constitute a binding offerwhich cannot be withdrawn priorto December 31,2001, so that the Agreement may be presented to the Agency Board. Notwithstanding any other provision herein to the contrary, Agency shall not be obligated hereunder unless and until the Agency Board authorizes the Chairman to execute this Agreement. G. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that(i)such party is duly organized and existing, (ii)they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement,.such party is formally bound to the provisions of this Agreement, and (iv)the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. 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 Chairman �fE T: C' Agency ecretary —� APPROVED AS TO FORM: v;!'� (.) 57 `ia w c,; ru 'aC�u°�i11? G G( t l7p R oo,a lSS �_..�z_�c�4 Age ounsel33� [SIGNATURES CONTINUED ON NEXT PAGE] "DEVELOPER" PHILIP J. CLEARY (Check One: individual, rtpnership, _corporation) [NOTARIZED] — (� Signature Print Name: �� r 7, I X Print Title: [NOTARIZED] Signature Print Name: Print Title: Mailing Address: (Corporations require two signatures; one from each of the following: (A) Chairman of Board, President,any Vice President;AND(B)Secretary,Assistant Secretary,Treasurer,AssistantTreasurer, or Chief Financial Officer.) (END OF SIGNATURES/NOTARY JURAT(S) FOLLOW] STATE OF CALIFORNIA ) ) ss. COUNTY OF 7 `�a,,,�) ON //� /C • ��r before me,�/�,t, /v Z, G�./1�fl�L Notary Public, personally appeared i e -- personally known to me-(er proved-tie-oMhe-basi 5. f-satisfactary-evidence}to be the person(,s'j whose name(, ) I&/are subscribed to the within instrument and acknowledged to me tha lie she/they executed the same i is her/theirauthorizedcapacity{ies),andthatb er/theirsignatureoonthe instrument the person(o, or the entity upon behalf of which the person(') acted, executed the instrument. Witness my hand and official seal. [SEAL] .,T L:L.A4fI L.111EC EKINU p / 0 COMAFl.#1206984 / /C C ^ RIVERSIDECOU14 NOTARYPUBLICORNIAn // RI VERSIDE COUIJ'IY (j Signature u F dice nl" o COMM.EXP.FE3.3,2003 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/theirauthorized capacity(ies),and that by his/her/theirsignature(s)on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. [SEAL] Signature EXHIBIT"A" TO EXCLUSIVE AGREEMENT TO NEGOTIATE LEGAL DESCRIPTION OF THE PROPERTY RESERVOIR PARCEL. The Land is that certain real property located in the City of Palm Springs, County of Riverside, State of California, more particularly described as follows: THAT PORTION OF THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 10, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN ACCORDING TO THE OFFICIAL PLAT OF SAID LAND, DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID SECTION 10; THENCE SOUTH 89' 51' WEST, 353.00 FEET TO THE CENTERLINE OF THE COUNTY HIGHWAY; THENCE SOUTH ON THE CENTERLINE OF THE COUNTY HIGHWAY, 700.13 FEET; THENCE SOUTH 89°50' WEST, 30.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 89° 50' WEST, 205.88 FEET; THENCE SOUTH 00' 10' EAST, 211.88 FEET; THENCE NORTH 89° 50' EAST, 205.30 FEET MORE OR LESS TO THE WESTERLY LINE OF SAID COUNTY HIGHWAY; THENCE NORTH ON SAID WESTERLY LINE OF THE COUNTY HIGHWAY, 211.88 FEET MORE OR LESS TO THE TRUE POINT OF BEGINNING. CASA DEL CAMINO PARCEL. PARCEL 1: LOT 12 IN BLOCK"A"OF LAS PALMAS ESTATES, AS SHOWN BY MAP ON FILE IN BOOK 15 AND 16 OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. PARCEL 2: ALL THAT PORTION OF LOTS 5 AND 6 IN BLOCK"A" OF LAS PALMAS ESTATES, AS SHOWN BY MAP ON FILE IN BOOK 15 PAGES 15 AND 16 OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 5; BEGINNING ALSO AT THE MOST NORTHERLY CORNER OF SAID LOT 6; THENCE SOUTH 890 50' WEST, ALONG THE BOUNDARY LINE OF SAID LOT 5, 35.77 FEET; THENCE IN THE SOUTHWESTERLY DIRECTION, TO A POINT ON THE NORTHERLY LINE OF CAMINO DEL NORTE, 5 FEET SOUTHEASTERLY FROM THE NORTHWESTERLY CORNER OF SAID LOT 6; TO THE SOUTHWESTERLY CORNER OF SAID LOT 6; THENCE EASTERLY, ALONG THE SOUTHERLY LINE OF SAID LOT 6, TO THE SOUTHEASTERLY CORNER OF SAID LOT; THENCE NORTHERLY, ALONG THE EASTERLY LINE OF SIAD LOT 6, TO THE POINT OF BEGINNING. EXHIBIT"B" TO EXCLUSIVE AGREEMENT TO NEGOTIATE MAP OF THE PROPERTY 505-18 r.c A.ooii_ozl PCW r2 NE4 SEC.10 T 45. R.4 E. S//EEr GOF2 0//-0r01 O I I I I1 WEST T't —STEVENS-1 Q t. -� ROAD 'rrr Lrr fIl ff •Jw NN J 3 .w.M — 1 .w 'I —•r.— i W ea _ rR. r .40 . as _- xl T— MINO`—t—1 am .. C yy/� t.� 'IS a i•l 2 i Q r zr ® ' - j C J, tl'i i rR. o f.00f I • ` y n O ' I i , . .N 9 •u� u l ... i i ©r -__1-__ 4b �CAMnf^^4 Z • t r r ' l R.r�o I 3 j z. I 2 1 U re. aio.o .. ,. `� � ,•tN/ I I i tea: — ,,. I r. +-c:vz-+-VEREBA - i I •°1 /B /O.uvi I �� ®/a, n ®.. 14 MB /5//5-/6 LAS PALMAS E5rATES M B.17/34 MIM SWIMS ESTATES NO3 M B 6V/I NACr 3537 MB.f2T/96.97 rrM Na./7943 CM///1-10 - nS01 x-r+r to MA/3I/3F33 /6077 CM i3//69-/ri�f0ua crn.raSJY GIGI�F.r.� cl 9'E, AGcusr/sse