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HomeMy WebLinkAbout00427C - WESSMAN DESERT FASHION PLAZA PROMENADE Wessman Development Exclusive Agr to Negotiate AGREEMENT #427C 9-12-01 R1144 EXCLUSIVE AGREEMENT TO NEGOTIATE WESSMAN DEVELOPMENT COMPANY TIJ4S EXPLUSIVE AGREEMENT TO NEGOTIATE ("AGREEMENT") , is made this day of 2001, by and between the PALM SPRINGS COMMUNITY REDEVELOPMENT AGENCY ("AGENCY"), and JOHN WESSMAN, D/B/A/ WESSMAN DEVELOPMENT COMPANY("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 the Palm Springs Merged Redevelopment Project Area No. 1 (formerly, the Central Business District Project Area) by providing for the redevelopment of the Desert Fashion Plaza,the largest single property in the project area, at the northwest corner of Tahquitz Canyon Way and Palm Canyon Drive ("the Site"). C. The Developer desires to redevelop the center into an attractive, first-rate mixed use retail/restaurant/office/hotel/residential project (hereinafter sometimes referred to as the "Mixed Use Project" or"Project") capable of receiving market rents and spurring the redevelopment of adjacent parcels. 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,forthe period setforth herein,to negotiate diligently and in good faith to prepare an agreement whereby the Developerwould redevelop the center on the site into an attractive, first rate Mixed Use Project. 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") consistent with the provisions of this Agreement for the redevelopment of a mixed use centeron the Site specified herein. The developmentwill be subjectto 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. 1 C. Construction and Ownership Concept. The Developers 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 an attractive and exciting Mixed Use Project with a distinct identity. The parties will develop a mutually satisfactory mix of uses which shall, subject to Section 413, be consistent with the City's General Plan and Zoning Code. The site will be subject to a declaration of covenants, conditions,and restrictions to govern the development and ownership of the development. In addition, the design will incorporate the following elements: 1. Developer shall exert commercially reasonable efforts to (a) make arrangements with Saks Fifth Avenue to terminate its existing lease and convey fee title to its existing building (which now sits vacant) to Developer, and (b) obtain a substitute department store type tenant to occupy such space. 2. Developer shall exert commercially reasonable efforts to obtain a significant anchor tenant such as Borders or Barnes & Noble, as shown on Developers proposed site plan, a copy of which is attached hereto as Exhibit"A",which is necessary to draw customers into the site. 3. Consideration will be given to leasing additional space in the existing center to the adjacent Hyatt Hotel for hotel type purposes. 4. The design shall accommodate outdoor special events. 5. To the extent commercially reasonable, the Project will be developed in such a mannerto minimize disruption on Palm Canyon Drive and to preserve current tenants on the Palm Canyon frontage. D. Financial Provisions. Except as otherwise provided herein, the Developer is responsible for acquisition of the site and financing and constructing all improvements upon the site. Developer shall pay for all necessary public improvements and pay all City's fees for processing the Project. In the event that the Project is not financially feasible without Agency assistance,the Agency will consider such assistance, provided that pursuant to Section 5C the Agency is under no obligation to provide such assistance. The Project is not financially feasible if the Developers economic return is less than that generally received for such a Project of similar scale and risk. The Agency's consideration of such assistance will be based on independent analysis of the Developers Project pro formas and the evaluation of all Project revenues and costs. Any assistance advanced or paid out during the life of the Project,would ultimately be performance driven, payable only from tax revenue generated by the Project. E. Schedule. The Developers goal is to redevelop the center by September 30, 2004. Due to the need for the Agency to possibly acquire the centerthrough condemnation,the property may be delivered in a later phase. F. Use and Transfer Restrictions. The DDA will generally be subjectto 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 reasonable quality Mixed Use Project(ii)to 2 prevent speculation, (iii)to assure that any transferee has the resources, capability and experience to successfully complete construction of the development, (iv) to assure long-term maintenance of the property in a productive and attractive condition, and (iv)to provide an adequate financial return to the Agency. G. Property Acquisition. The Developer has proposed acquiring a the 13+ acre property from Excel, the current owner, at fair market value. The acquisition of the site may also involve an involuntary acquisition of property. To the extent provided by law,the DDA will contain provisions that the Agency will consider the use of its power of eminent domain for site assemblage should voluntary negotiations be unsuccessful but Agency shall have no liability whatsoever to Developer if Agency should decide not to undertake condemnation. Nothing herein shall be deemed to obligate Agency to undertake such acquisition by condemnation. If the Agency shall undertake such acquisition, Developer shall be solely liable for the cost thereof, including the legal costs,attorney fees,the amount of just compensation, irrespective of the amount, or the award of attorney fees to the defendant, if awarded. H. Parking. During the period of this Agreement Developer will keep the existing parking lots and structures open and available for public parking. I. 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 regional shopping center within the city limits of the City of Palm Springs or any adjacent jurisdiction within 5 miles of the Project, without approval of Agency. SECTION 2. PERIOD OF NEGOTIATIONS. The period of negotiation shall be one hundred eighty(180)days from the date thisAgreement is signed by the Agency, and this Agreement shall terminate afterthe 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 not yet been approved by the Agency Board; or B. Forthirty(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 agreementshall be effective only afterand if the agreement has been considered and approved bythe Agency Board after public hearing thereon as required by law. 3 SECTION 3. DEVELOPER'S RESPONSIBILITIES. During the period of negotiation, Developer will prepare such studies, reports, and analysis as shall be necessary to permit Developer to determine the feasibility of its participation in the shopping center redevelopment. 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. Developer shall submit to Agency financial information sufficient to demonstrate Developer's financial capability to do the Project. To the extent Developer wants such financial information to remain confidential, it shall be supplied to the Agency only if the confidentiality of the information can be maintained. C. All information reasonably necessary forthe design of the Project to meet the Agency's reasonable requirements. In addition, Developer shall take all commercially reasonable actions necessary to obtain construction and permanent financing. This information shall be sufficient to allow the Agency to evaluate site configuration, architectural design, Project quality and similar issues. D. Financial pro formas for the Project as necessary to negotiate any financial assistance from the Agency as provided in Section 1 D. Such financial information is subject to public disclosure. With respect to matters covered by this Agreement, Developer shall negotiate exclusively with the Agency's negotiating team. 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, including Agency's financial consulting and legal expenses for preparation of the Agreement, shall be borne by Agency. B. Zoning. The Agency will undertake all acts necessary to cause the City to zone or rezone such portions of the property as may be necessary to permit the development of a Mixed Use Project on the site. Anything herein to the contrary notwithstanding,upon request from Developer,the Agency will also undertake all acts necessary to cause the City to zone or rezone portions of the property located in west areas of the site for hotel uses and/or residential uses, including single family homes, condominiums and residential timeshare uses. Any change in zoning is subject to a Public Hearing process at the Planning Commission and City Council. Failure to rezone the property does not constitute a breach of this Agreement. 4 SECTION 5. MISCELLANEOUS. A. No Commissions. The Agency shall not be liable for any real estate commission or any broker's fees which may arise herefrom. The Agency represents that it has engaged no broker,agent, or finder in connection with this transaction, and the Developer agrees to hold the Agency harmless from any claim by any broker, agent, or finder retained by the Developer. B. Ownership of Documents. If the negotiations contemplated by this Agreement do not result in the execution of an agreement, 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 shall be the property of the party that paid for the creation of same. 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. C. 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 or Developer to enter into any agreementthat may result in negotiations contemplated herein. D. Amendment. This Agreement may only be amended by a document in writing signed by the parties hereto. E. Time forAcceptance. This Agreement,when executed by the Developer and delivered to the Agency, shall constitute a binding offer which cannot be withdrawn prior to September 7,2001, 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. F. 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. 5 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 y4w Chairman Cqn Secretary APPROVED A TO FORM: Yk(xti Age Counsel [SIGNATURES CONTINUED ON NEXT PAGE] 11dL l"UGAwcLA�d 1 L 6 "DEVELOPER" WESSMA,,N DEVELOPMENT COMPANY (2heck One,: X i dividuaI _partnership, _corporation) [NOTARIZED] i �1 �✓�� �? Signature Print Name: J lr° Print Title: o-wjy,C- [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] 7 STATE OF CALIFORNIA ) ) SS. COUNTY OF ) ON 2i -tow, before me, !%?}r� �i� �n Notary Public, personally appeared ZJi)h 9 h�J� Sara. personally known to me (er--proved-te-rne-on-thp-basis--of-satisfactory-evidence) to be the person($) whose name(g) is/ar subscribed to the within instrument and acknowledged to me that he/she/thgy executed the same in his/her/thetnuthorized capacity(iea),and that by his/htmthr&signature(%)on the instrument the person, or the entity upon behalf of which the person(&), acted, executed the instrument. Witness my hand and official seal. [SEAL] f���. jLi' ?e v✓ pR F,' r,'1-110GINS Signature �' v coen�n. �zs 342 m r .. Notary ftu ic-y.awornli M 1' RIVERSIDE MUNTY -' ,My Coanni.Exp,Dec.27,2004 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 8 M U S E U M D R I V EPIE RESIDENTIAL SITE PLAN 1 § � L IIIII 1 _ q" RETAIL �• — pp f _ ___ - y HYATT' HOTEL � Sant Fisrx nvErrue N O R T H P A L M 'CA N Y 0 N D R II V E� I a/:111.D E T.1 F IN iJ�AN � o%`osjo2 PRODUCER Weingarten & Hough-LiC#0086542 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION P 0 BOX 1866 ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Palm Springs CA 92263 COMPANIES AFFORDING COVERAGE (760) 325-2526 COMPANY _ A Allied Insurance Grou INSURED +.,,. - COMPANY John Wessman B Wessman Development Company COMPANY r,` 1555 S . Palm Canyon Dr #G106 6��i?9 Palm Springs CA 92262 COMPANY (1760) 325-3050 D GD,VERAGES ., .. ,.... ...: .., THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO LTR DATE(MM/DD/YY) DATE(MM/DD/YY)TYPE OF INSURANCE POLICYNUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS A GENERAL LIABILITY GENERAL AGGREGATE s2 , 000 , 000 X COMMERCIAL GENERAL LIABILITY ACP7810673707 10/01/01 10/01/02 PRODUCTS-COMP/OPAGG s2 , 000 , 000 CLAIMS MADE I OCCUR PERSONAL&ADV INJURY $1, 000, 000 OWNER'S&CONTRACTOR'S PROT EACH OCCURRENCE $1, 000, 000 FIRE DAMAGE(Any one fire) $ 100 , 000 MED EXP(Any one person) $ 5, 000 AUTOMOBILE LIABILITY ANYAUTO / / / / COMBINED SINGLE LIMIT S ALL OWNED AUTOS BODILYINJURY $ SCHEDULED AUTOS (Perrper person) HIRED AUTOS BODILY INJURY $ NON-OWNED AUTOS (Per accident) PROPERTY DAMAGE $ GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTO / OTHER THAN-AUTO ONLY EACH ACCIDENT $ AGGREGATE S A EXCESS LIABILITY EACH OCCURRENCE s4, 000, 000 [Ti UMBRELLA FORM CAA7800673707 10/01/01 10/01/02 AGGREGATE s4, 000, 000 OTHER THAN UMBRELLA FORM - - - SIR - $ - - 10 , 0-0-0- - WORKERS COMPENSATION AND STATUTORY LIMITS EMPLOYERS'LIABILITY THE PROPRIETOR/ EACH ACCIDENT $ PARTNERS/EXECUTIVE INCL DISEASE-POLICY LIMIT $ OFFICERS ARE EXCL DISEASE-EACH EMPLOYEE $ OTHER DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS Re : Lease Agreement No. 437C for Courtyard Signage . City of Palm Springs, Community Redevelopment Agency & their respective members, officers, officials, employees, a ents & re resentatives are named as additional insureds CEO ICAT ,H 4L17 �C CAN'C SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE City of Palm Springs EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL Community Redevelopment Agency 3 O DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, 3200 Tahquit z Canyon Way BUf[FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY Palm springs CA 92262 OF/ ANY KIND U ON THE OMPANY, S AGENTS OR REPRESENTATIVES. UT /f.9 S / TVE I ;d.Gt3Fip':CfiiflPO4i(iTii7N:.i99a.