HomeMy WebLinkAbout2/26/2003 - STAFF REPORTS (3) DATE: FEBRUARY 26, 2003
TO: COMMUNITY REDEVELOPMENT AGENCY
FROM: DIRECTOR OF COMMUNITY&ECONOMIC DEVELOPMENT
APPROVAL OF AN ASSIGNMENT AND ASSUMPTION AGREEMENT AND CONSENT OF
AGENCY BETWEEN SCHLPS, LLC, A CALIFORNIA LIMITED LIABILTY COMPANY AND
FAIRFIELD RESORTS, INC., A DELAWARE CORPORATION AND A CENDANT
CORPORATION BUSINESS UNIT, REGARDING A DISPOSITION AND DEVELOPMENT
AGREEMENT
RECOMMENDATION:
It is recommended that the Agency approve an Assignment Agreement and Consent of
Agency between SCHLPS, LLC, a California Limited Liability Company and Fairfield
Resorts, Inc„ a Delaware Corporation and a Cendant Corporation business unit,
regarding a Disposition and Development Agreement between SCHLPS, LLC and the
Community Redevelopment Agency.
OHN . RA ND
Di cto of Re elopment
APPROVED
Executive Director
ATTACHMENTS:
1. Resolution
2. Assignment Agreement and Consent of Agency
14Ad
RESOLUTION NO.
OF THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS,
CALIFORNIA, APPROVING AN ASSIGNMENT
AND ASSUMPTION AGREEMENTAND CONSENT
OF AGENCY BETWEEN SCHLPS, LLC, A
CALIFORNIA LIMITED LIABILTY COMPANY AND
FAIRFIELD RESORTS, INC., A DELAWARE
CORPORATION AND A CENDANT
CORPORATION BUSINESS UNIT,REGARDING
DISPOSITION AND DEVELOPMENTAGREEMENT
FOR THE DEVELOPMENT
OF A RESORT PROJECT IN MERGED PROJECT
AREA #1
WHEREAS the Community Redevelopment Agency of the City of Palm Springs approved a
Disposition and Development Agreement (DDA) with SCHLPS, LLC on September 19, 2001,
and an Amendment to the DDA on November 26, 2002; and
WHEREAS forfinancing and development purposes SCHLPS, LLC desires to assign the project
to Fairfield Resorts, Inc., a business unit of Cendant Corporation.
NOW THEREFORE BE IT RESOLVED by the Community Redevelopment Agency of the City
of Palm Springs,that the Assignment Agreement and Consent of Agency between the SCHLPS,
LLC and Fairfield Resorts, Inc., in a form approved by the Agency Counsel, is hereby approved.
ADOPTED this day of 12003.
AYES:
NOES:
ABSENT:
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, CALIFORNIA
By
Assistant Secretary Executive Director
REVIEWED & APPROVED AS TO FORM
SAO
ASSIGNMENT AND ASSUMETI0N AGREEMENT
AND CONSENT OF AGENCY
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this"Assignment")
is made and entered into as of March , 2003 (the "Effective Date") by and among
SCHLPS, LLC, a California limited liability company ("Assignor"), FAIRFIELD
RESORTS, INC., a Delaware corporation, a Cendant Corporation business unit
("Assignee")with respect to the following facts:
WITNES SETH:
Assignor and the Community Redevelopment Agency of the City of Palm Springs
("Agency") entered into that certain Disposition and Development Agreement (the
"Original DDA") on or about September 19, 2001. On or about , the DDA
was amended by that certain First Amendment to Disposition and Development
Agreement (the "Amendment") (the Original DDA and the Amendment are collectively
referred to herein as the "DDA").
Pursuant to the DDA, Assignor has the right to develop a 255 unit timeshare
project (the "Project") on the real property described on Exhibit "A" hereto (the "Site"),
in accordance with the terms and conditions set forth in the DDA.
Assignor and Assignee are parties to that certain Contract for Sale and Purchase
of Real Property and Joint Escrow Instructions (the "Purchase Agreement"), dated
November 25, 2002, as amended from time to time, pursuant to which Assignor agreed to
sell to Buyer and Buyer agreed to purchase from Seller the certain real and personal
property described therein, including the Site. In connection with such purchase and sale
Assignor desires to assign to Assignee, and Assignee desires to accept the assignment
from Assignor of, all of Assignor's right, title and interest in and to certain property
described herein, on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and in consideration of the mutual
covenants and conditions contained herein, the parties hereto, intending to be legally
bound hereby, covenant and agree as follows:
1. Assi ne ment. Effective from and after the Effective Date, Assignor hereby
assigns, transfers, conveys and grants to Assignee all of Assignor's right, title and interest
in and to (i) the DDA (but excluding paragraph 4.11(b) thereof); (ii) the Development
Rights (as defined in the Purchase Agreement); (iii) all of Seller's right, title, and interest,
including without limitation all copyrights, licenses, common law, statutory and reserved
rights, in and to all blueprints, plans, specifications, architectural drawings or renderings,
surveys, engineering reports and studies, geological reports and studies and
environmental reports and studies relating to the Property (the "Plans"); and (iv) all right,
title, and interest of Seller in and to all other tangible or intangible personal property (the
\U,A-SRV0I\16327404
"Other Personal Property") relating to the Property or components of the Property,
including: (a) all deposits, documents, contract rights, commitments, construction
contracts, title policies, insurance policies, guarantees, warranties, licenses, architectural
agreements and the Agreements (as defined in paragraph 14(k) of the Purchase
Agreement); (b) all certificates, authorizations, approvals, consents and all other rights
and privileges obtained in connection with or used in or in any way pertaining to the
development or operation of the Property; (c) all proceeds arising from or by virtue of
any taking or condemnation of any part of the Property; (d) all proceeds of each policy of
insurance relating to the Property; and (e) all copyrights, logos, trademarks and trade or
business names relating to the ownership, use, development, operation and management
of the Property, including without limitation the name Star Canyon Resort and similar
derivations thereof. Further, effective from and after the Effective Date, Assignor hereby
assigns and delegates to Assignee all of Assignor's duties, obligations, liabilities and
undertakings which arise or occur after the Closing pursuant to the DDA (but specifically
excluding any liability arising from any representation or warranty made by Assignor
pursuant to the DDA on or prior to the date hereof, and specifically excluding any
liability arising pursuant to paragraph 4.11(b) of the DDA, whether occurring prior to, on
or after the Closing). In the event of any inconsistency between the representations,
warranties and covenants set forth in this Assignment and the representations, warranties
and covenants set forth in the Purchase Agreement, the terms of the Purchase Agreement
will control.
2. Acceptance. Effective from and after the Effective Date, Assignee hereby
accepts the foregoing assignment and delegation and assumes all of the terms, conditions
and obligations of Assignor under the DDA (other than Section 4.11(b) thereof) and
agrees to be bound thereby. Notwithstanding the foregoing, Assignee shall only be liable
for express obligations that arise and occur after the Effective Date, and in no event shall
Assignee (i) be liable for any implied obligation, or any obligation or condition that is
attributable to the period of time prior to the Effective Date, including but in no way
limited to any indemnification obligation; (ii) be deemed to have made any representation
or warranty set forth in the DDA; or (iii) be liable pursuant to Section 4.11(b) of the
DDA.
3. Deposits Fees and Payments. Assignee shall be entitled to the benefit of
any and all deposits, fees or payments related in any way to the DDA, the Development
Rights or the Site and made or paid by Seller (or Palm Springs New Millennium
Development, Inc. or any affiliate of Seller) to the Agency, the City, or any other
governmental agency or entity having jurisdiction over the Site
4. DDA. Assignor hereby represents and warrants to Assignee that as of the
Effective Date the DDA is in full force and effect, has not been modified and there are no
defaults by either Assignor or Agency thereunder, and that as of the Effective Date no
transfer in violation of Section 5.17 of the DDA has occurred.
5. Successors and Assigns. The provisions of this Assignment shall be
binding upon and inure to the benefit of the parties hereto and their respective successors
and assigns.
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6. Counterparts. This Assignment may be executed in any number of
counterparts, and by facsimile signature, each of which shall be deemed an original and
all of which, taken together, shall constitute a single instrument.
7. Capitalized Terms. Capitalized terms used but not otherwise defined
herein shall have the meaning given such terms in the DDA.
8. Governing Law. This Assignment shall be governed by, and construed in
accordance with, the laws of the State of California, without regard to principles of
conflict of laws.
IN WITNESS WIIEREOF, the parties hereto have caused this Assignment
to be duly executed the day and year first above written.
ASSIGNOR:
SCHLPS, LLC, a California limited
liability company
By:
Name:
Title:
ASSIGNEE:
, .^ , FAIRFIELD RESORTS, INC., a
„.
AS N � Delaware corporation
By:
Name:
Title:
MA-SRV01\163274VO4
CONSENT OF AGENCY
This Consent of Agency("Consent") is attached to and made a part of that certain
Assignment and Assumption of Disposition and Development Agreement(the
"Assignment"). By executing this Consent Agency hereby (i) consents to the acquisition
of the Site by, and the assignment of the DDA and the Development Rights to, Assignee;
(ii) acknowledges and agrees that it has reviewed and approved Assignee's financial
credit, strength and capability pursuant to Section 5.17(b) of the DDA; (iii) acknowledges
and agrees that the condition regarding financing set forth in Section 4.5(b)(ii)has been
satisfied; (iv) approves each and all of the terms and conditions set forth in the
Assignment, (v) acknowledges and accepts the delegation to Assignee, and the
assumption by Assignee, set forth in the Assignment; (vi) acknowledges and agrees that
pursuant to the terms of the Assignment, Assignee shall have no liability pursuant to
Section 4.1l(b) and that agency shall look only to Assignor with respect to any liability
thereunder; and (ix) pursuant to Section 29 of the Amendment, the Agency hereby
Consents to the form of disclosure attached hereto as Exhibit"B".
In accordance with paragraph 5.17(c) of the DDA, the Assignment, shall be
effective upon execution of the Assignment and the Consent by Assignor, Assignee and
the Agency(as applicable), and upon delivery of the fully executed Agreement to the
Agency. Further, pursuant to paragraph 5.17(c) of the DDA, the Agency specifically
agrees that this Agreement shall be deemed to relieve and release Assignor of all of
Developer's obligations arising under the DDA subsequent to the effective date hereof,
including, but not limited to, Assignor's obligation to complete the Project, provided
however that Assignor shall not be released from any liability pursuant to Section 4.11(b)
thereof, which liability has not been assigned to or assumed by Assignee.
Executed as of this_day of March 2003.
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS,
CALIFORNIA, a public body, corporate and
politic
Name:
Title:
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CONSENT OF EXECUTIVE DIRECTOR
Pursuant to paragraph 6 of the Note, the undersigned Executive Director of the
Agency hereby consents to the assignment of the Note to Assignee.
By:
Name: David Ready
Executive Director
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