Loading...
HomeMy WebLinkAbout00351C - LINSU DEVELOPMENT VISTA CHINO INDIAN PROPERTY . Linsu Development Co. LLC Negotiate Acq of Property Vista Chino/Indian Cyn AGREEMENT #351C R979, 6-21-95 EXCLUSIVE AGREEMENT TO NEGOI u-%A L THIS EXCLUSIVE AGREEMENT TO NEGOTIATE ( "Agreement") is entered into this �/ day of -M-ay 1995 by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic (the "Agency" ) , and LINSU DEVELOPMENT COMPANY, L. L .C. , a California limited liability company ( "Developer") . R E C I T A L S : The parties have entered into this Agreement on the basis of the following facts, understandings and intentions : A. 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 sec . ) . B. Agency has previously entered into an Owner Participation Agreement dated July 31, 1985 ("Renaissance Agreement" ) with Renaissance Hotel Partnership ( "Renaissance" ) pursuant to which Renaissance was to construct a 105 room hotel upon that certain unimproved real property depicted on Exhibit "A" attached hereto and incorporated herein by reference (the "Site" ) , which Site Renaissance owns . Renaissance has defaulted on its obligations under the Renaissance Agreement and the Agency has served a termination notice on Renaissance to terminate the Renaissance Agreement . C. The Site is located in the North Palm Canyon Redevelop- ment Project Area (the "Redevelopment Area" ) . D. Developer is interested in acquiring the Site for the expansion of Developer' s hotel development located adjacent to the Site, which expansion shall include units generating transient occupancy tax in an amount to be agreed upon by the parties (the "Project" ) . E . Agency desires to effectuate the intent of the Redevelopment Area plan by assisting the development of the Project on the Site. F. Agency and Developer desire, for the period set forth herein, to confirm their respective willingness and ability to negotiate in good faith and, if agreement is reached as to the terms of such transaction, to enter into a binding agreement for the acquisition and development of the Site by Developer on such terms . P82\383\014084-0006\2142091.2 a05/22195 r Ora - 4 _ � NOW, THEREFORE, and in consideration of the mutual covenants hereinafter contained, it is mutually agreed upon by the parties as follows : 1 . PERIOD OF NEGOTIATION. 1 . 1 Negotiation Period. The period of negotiation shall be one hundred eighty (180) days from the date this Agreement is signed by Agency ,( "Negotiation Period" ) . This Agreement shall terminate after the expiration of the Negotiation Period unless extended (i) for thirty (30) days if an owner participation agreement between Agency and Developer (the "OPA" ) has been prepared by Agency and executed by Developer and has been submitted to Agency, but has not yet been approved by the Agency Board; (ii) for thirty (30) days if the business terms of the OPA have been agreed to and the Executive Director of the Agency and Developer determine that further negotiations are likely to result in a written agreement; or (iii) by mutual written agreement of the parties . 1 . 2 Agency Approval . 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 applicable law ("Agency Approval" ) . Developer acknowledges and understands that the expending of money by Developer prior to the Agency Approval shall be solely at Developer' s risk and such actions can not be used by Developer to bind or estop Agency in any way with respect to entering into any agreement with respect to the Site. 2 . NATURE OF NEGOTIATIONS . 2 . 1 Good Faith. Agency and Developer agree that for the period set forth in Section 1 herein they will negotiate diligently and in good faith to prepare and enter into an OPA consistent with the provisions of this Section for the development of the Project on the Site . The development will. be subject to all rules, regula- tions, standards, and criteria set forth in the Redevelopment Plan, the City' s General Plan, applicable specific plans and zoning regulations and with this Agreement . 2 .2 Good Faith Deposit and Reimbursement . Concurrently with the execution of this Agreement, Developer has submitted to the Agency a good faith deposit (the "Negotiation Deposit" ) in the sum of TEN THOUSAND DOLLARS ($10, 000 . 00) to insure that Developer will proceed diligently and in good faith. to negotiate and perform all of Developer' s obligations under this Agreement . If after the receipt of the appraisal of the Site during the Appraisal Period (as defined below) , Developer elects to proceed with negotiating the OPA, Developer shall increase the Negotiation Deposit by an additional Twenty-Five Thousand Dollars ($25, 000 . 00) . If the OPA F52M3\014084-0006\2142091.2 a05/22195 —2— is approved by the Agency Board prior to the expiration of the Negotiation Period, concurrently with the execution of the OPA, Developer shall increase the Negotiation Deposit by an additional amount mutually agreed to by the parties . The OPA shall provide that if the Agency elects to commence condemnation proceedings for the acquisition of the' Site, Developer shall increase the Negotiation Deposit by an additional amount which the Agency reasonably believes will be necessary to conduct the condemnation proceedings and acquire the Site . In addition, Agency may call for additional supplemental deposits to the Negotiation Deposit to cover its actual and reasonable expenses incurred hereunder, which Developer shall make within ten (10) days of the call therefor. The Negotiation Deposit shall be made in cash and shall be deposited in an internal non-interest bearing account with Agency. Provided that Developer has negotiated diligently and in good faith to carry out its obligations hereunder, the Negotiation Deposit less the Deductions (as defined below) shall be returned to Developer within ten (10) days after either party determines in its good faith discretion, based on new information not known on signing this Agreement, including the determination of the acquisition price or as determined through the course of the negotiations, that the Project is not economically feasible and promptly notifies the other party that it is terminating this Agreement . Except as listed above, if Developer fails to enter into an OPA with Agency, the actual damages which would result are uncertain and would be impractical or extremely difficult to determine and, therefore, Agency shall be entitled to retain the entire balance of the Negotiation Deposit as liquidated and agreed damages . 2 . 3 Deductions . Developer has consented to the Negotiation Deposit being used to reimburse the Agency for its legal fees and other costs incurred in connection with carrying out the terms of this Agreement and the OPA, should the OPA be approved by the Agency Board. Agency shall pay from Negotiation Deposit the sum of the following (the "Deductions" ) : (a) The Agency' s cost for an appraisal of the Site; (b) The Agency' s reasonable and necessary legal fees and costs incurred by the Agency for the drafting and negotiation of the agreements necessary for the Project and drafting notices and holding preliminary discussions with the owner of the Site for the acquisition of the Site; (c) The Agency' s cost for carrying out the terms of the OPA, including, but not limited to, all costs incurred in connection with acquiring the Site, whether through condemnation (should Agency elect to pursue condemnation) or otherwise; (d) Any costs incurred by Agency in defending the Project; and FS2\393\014094-"6\2142091.2 a05/22/95 -3- ra s (e) Any similar reasonable and necessary fees and costs incurred by the Agency in order for it to complete its obligations under this Agreement and the OPA. Agency shall provide an accounting to Developer of all such funds expended. - All of the Agency' s obligations hereunder are contingent upon adequate funds being maintained in the Negotiation Deposit . 2 . 4 Exclusivity. Agency agrees during the Negotiation Period, as the same may be extended as herein provided, that it will reserve the Site for Developer and not negotiate with or enter into any agreement with any other entity which would prelude the Developer from acquiring the Site . Developer agrees for the Negotiation Period not to negotiate with any other person or entity regarding the development, relocation or expansion of any facility of the Developer in the Coachella Valley area without the prior written approval of the Agency. 3 . ELEMENTS OF THE TRANSACTION. 3 . 1 Site . The Project shall be located upon the Site. 3 . 2 Appraisal Period. During the initial ninety (90) days of the Negotiation Period, Agency and Developer shall endeavor to determine the fair market value of the Site ( "Appraisal Period" ) . In connection therewith, Agency will commission an appraisal to be made of the Property. If upon the receipt of the appraisal, the Developer determines that the Project is not feasible, Developer shall so notify the Agency and this Agreement shall terminate . 3 . 3 Negotiation of OPA. If, after the expiration of the Appraisal Period, Developer elects to continue this Agreement, the parties shall continue to analyze the feasibility of the Project and will negotiate the terms of the OPA for the remainder of the Negotiation Period. 3 .4 Acouisiticn Process . Agency shall endeavor to make the Site available to Developer after the execution of the OPA, although the Agency cannot and does not commit to using its power of eminent domain to acquire any portion of the Site . Any such use of the power of eminent domain must be made through the process required by law. Developer understands that neither the Agency nor any of its member agencies is obligated by this Agreement nor will it be obligated under the OPA to acquire any parcels of land comprising the Site and that the members of the respective boards are free to exercise their discretion in any manner they see fit in the event that such agency considers condemnation. Nothing in this Agreement nor in the OPA shall be deemed a prejudgment or commitment with respect to condemnation or a guarantee that such condemnation will be undertaken. As is more particularly set forth in Section 1 above, all costs incurred by Developer under this Agreement shall be at Developer' s risk and Agency shall have no PS2\383\014084-"6\2142091.2 a05/22/95 -4- obligation to reimburse Developer for any costs incurred by Developer should Agency determine not to commence condemnation proceedings against the Site . 3 . 5 Acquisition Price . The acquisition price of the Site shall be all costs incurred by Agency or Developer to acquire the Site, less any tax increment financing the Agency agrees to provide pursuant to Section 3 . 6 below. 3 . 6 Tax Increment Financing. During the Negotiation Period, Agency and Developer will negotiate a method for reimbursing Developer for the Deductions (exclusive of the purchase price to be paid for the Site, whether by agreement or eminent domain) by the Agency passing on to Developer a portion of the tax increment revenues generated by the Project, which portion shall be determined during the Negotiation Period. 3 . 7 Developer' s Investigations and Conditions . The OPA shall provide that promptly following execution of the OPA, the Developer shall undertake, at Developer' s sole cost and expense, the following ( "Developer' s Conditions" ) : (i) all studies, investigations and assessments (including all testing for hazardous substances) reasonably required by Developer to confirm its willingness to accept the Site in its current "AS IS" , "WITH ALL FAULTS" condition; (ii) the processing and acquisition of all discretionary approvals reasonably required to permit Developer to construct the Project on the Site pursuant to the City of Palm Springs standard procedures and fees; and (iii) such financial feasibility and marketing studies as Developer may reasonably require to support investment in and financing of, the Project . 3 . 8 Schedule of Performance . During the term of this Agreement, Developer and Agency shall agree upon a schedule for the Developer' s submission and the City and Agency' s processing of the applications for discretionary approvals and building permits prepared by Developer and for the dates by which Developer must commence and complete construction of the Project and open the Project for business . The schedule shall be made a part of the OPA. The schedule shall also specify an outside date by which construction of the Project shall commence, subject to extension due to reasonable force majeure delays . 3 . 9 Recorded Restrictions . The OPA will generally be subject to restrictions on use and transfer during construction and for a specified period thereafter (i) to assure that the use will be consistent with and promote the Project, (ii) to prevent specula- tion, (iii) to assure that any transferee has the resources, capability and experience to successfully operate the applicable portion of the Project, and (iv) to assure continued maintenance of the improvements . 3 . 10 Closing. The OPA shall provide that the acquisition of the Site by Developer shall be handled by an escrow company acceptable to both Agency and Developer. Agency shall convey or P520831014084-0006\2142091.2 a05/22/95 -5- era - 6-9 C ra- �- 1C� cause conveyance of fee title of the Site to the Developer at the "Closing" . Title to the Site shall be in the condition shown on a preliminary title report obtained by Developer prior to execution of the OPA, unless the Agency agrees in the OPA to cause specified title matters to be eliminated prior to the Closing. The entire Site shall be acquired at the closing and the acquisition price shall be paid by Developer in cash or upon other terms as mutually agreed to by the parties . Agency shall provide and pay the premiums for a CLTA owner' s policy of title insurance on the Site issued by a title company approved by Agency and Developer. Any extended coverage (including ALTA survey to support same) and endorsements required by Developer shall be at the cost of Developer. Agency shall pay documentary transfer taxes and one- half of the escrow fee . Developer shall pay the additional title premiums referenced above, the balance of the escrow fee and all recording charges . No broker' s commissions shall be paid by Agency in connection with the transaction. 4 . ADDITIONAL RESPONSIBILITIES DURING NEGOTIATION PERIOD. 4 . 1 Developer' s Responsibilities . Immediately following the execution of this Agreement, Developer shall provide (i) full disclosure of the Developer' s principals, partners, joint venturers, negotiators, consultants, professional employees or other associates of Developer who are participants or principals of the Project, and all other relevant information concerning the above; and (ii) a statement of financial condition in sufficient detail to demonstrate Developer' s financial capabilities, those of its principals, partners, joint venturers, and those of its prospective lenders to satisfy the commitments necessitated by the Project . Upon the expiration of the Appraisal Period, Developer shall perform the following: (a) prepare such additional studies, reports and analysis as shall be necessary to permit Developer to determine the feasibility of its participation in the Project and to acquire the Site in its AS-IS condition, including, without limitation, the preparation of traffic engineering studies and any other environmental studies necessary to provide Agency with the information necessary to determine any mitigation measures required in connection with the Project . (b) negotiate the business terms of the OPA in accordance with Section 2 above. (c) prepare a proposed site plan for the Project . Developer shall negotiate exclusively with Agency' s negotiating team and with no other persons unless expressly authorized in writing to do so by Agency' s negotiating team. During the period of negotiations, no statements will be made by Developer to the media without the approval of Agency' s negotiating PS2\383\014084-"6\2142091.2 a05/22/95 —(— r team. No prepared statements shall be released to the media with- out the mutual consent of the respective negotiating teams . 4 . 2 Agency Responsibilities . If the parties are successful in negotiating the necessary terms of the OPA and each confirms the apparent feasibility of the Project from their perspective, then Agency will commence the documentation of the OPA within thirty (30) after such terms have been agreed upon. In connection with such documentation, Agency will attempt to identify the City fees and mitigation measures that will be the responsibility of Developer in connection with the development of the Project . S . MISCELLANEOUS . 5 . 1 Assignment . Developer shall not have the right to assign this Agreement or any interest or right hereunder or to nominate another party to take title to the Site without the prior written consent of the Agency, which consent may be withheld in Seller' s sole and absolute discretion. Notwithstanding the foregoing, Developer shall have the right to assign this Agreement or nominate to take title to the Site a limited liability company in which Stephen Payne is a member and a manager or to a corporation in which Stephen Payne is an officer and shareholder. 5 . 2 No Commissions . Agency shall not be liable for any real estate commission or any brokers' fees which may arise from this Agreement . 5 . 3 Ownership of Documents . If the negotiations contemplated by this Agreement do not result in the execution of an agreement, Developer shall transfer to Agency at no cost or expense 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 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 . 5 .4 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 Site whatsoever. It is further agreed and understood that this Agreement does not imply any obligation on the part of Agency to enter into any agreement that may result from negotiations contemplated herein. 5 . 5 Amendment . This Agreement may only be amended by a document in writing signed by the parties hereto .P82\383\014084-0006\2142091.2 a05/22/95 —7— //'�M •f�`�/} — 6+/J 0 • C ra- 4 - /,:�- 5 . 6 Entire Agreement . This Agreement contains all the agreements of the parties hereto with respect to the matters contained herein and no prior agreement or understanding pertaining to any such matter. 5 . 7 Notices . Any notice which either party may desire to give to the other party must be in writing and shall be effective (i) when personally delivered by the other party or messenger or courier thereof ; (ii) three (3) business days after deposit in the United States Mail, registered or certified; or (iii) twenty-four (24) hours after deposit before the daily deadline time with a reputable overnight courier or service; in each case postage fully prepaid and addressed to the respective parties as set forth below or to such other address and to such other persons as the parties may hereafter designate by written notice to the other parties hereto: To Agency: Community Redevelopment Agency of the City of Palm Springs, California P .O. Box 2743 Palm Springs, CA 92263-2743 3400 East Tahquitz Canyon Way Palm Springs, CA 92262 Attn: Executive Director Copy to : Rutan & Tucker P.O. Box 1950 Costa Mesa, CA 92628-1950 611 Anton Boulevard, Suite 1400 Costa Mesa, California 92626 Attn: David J. Aleshire, Esq. To Developer: Linsu Development Company, L.L.C. 1533 Chaparral Road Palm Springs, CA 92262 Attn: Stephen Payne Copy to: Roemer & Harnik 45-025 Manitu Dr. Indian Wells, CA 92210 Attn: Richard I . Roemer, Esq. Either party may from time to time, by written notice to the others, designate a different address which shall be substituted for the one (s) above specified, and/or specify additional parties to be notified. 5 . 8 Attorneys' Fees . In any action between the parties respecting this Agreement, the prevailing party in such action shall be entitled to have and to recover from the other party its reasonable attorneys' fees and other reasonable expenses in connection with such action or proceeding in addition to its recoverable court costs . PS2\393\014094-"6\2142091.2 .05/22/95 -8- 5 . 9 Interpretation: Governing Law. This Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto. This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement . Titles and captions are for convenience only and shall not constitute a portion of this Agreement . As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others wherever and whenever the context so dictates . 5 . 10 Time for Acceptance . This Agreement, when executed by Developer and delivered to Agency, shall constitute a binding offer which cannot be withdrawn prior to thirty (30) days after delivery, 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 . IN WITNESS WHEREOF, the parties have executed this Agreement as of the day first above written. Date : Apr±± , 1995 AGENCY: ATTEST: `l COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIF A, a pub-1-11s, body, corporate and olitic By:� � L By; Ass-i-6tant Secretary Exec0ive Dire or APPROVED AS TO FORM: RUTAN & TUCKER Agency Cou�)sel Date : April , 1995 DEVELOPER: LINSU DEVELOPMENT COMPANY, L.L.C. , a Califor d liability company L;,'ll a Ilv V�Lf%due%`u1�0�.�iI J 11 �/L IS 3 s S phen Pays Manager PS2\383\014084-0006\2142091.2 u05/22195 —9— SENT BY: 6-12-95 ; 9:27AM ; RUTAN & TWR- 619 322 8325;# 2 EXHIBIT pEPICTIM OF THE SITE � rQ VISTA CHINO Rod,i 9' Jet 07' 3as /G4 -oo/ I f, KATCHNARKn I ti PATEL I so7•drnmr cvi • 14 fa M 1 of 007- nz!• Od 1 I I I 1 BARTHOLOMEW Ih h J03 /GG• p�2 y It 7 � I I ldT-PL•PPO I _ _ � `a Sod•/c6-cP� v � / m �111 ` � 25 so �, ♦ril 4 vy .aa-ddd 70 $0 607 -09/-004 11i i ° Jc w Z .d 507-0121- 007 1 .4e7- qE/-OOd *, � SPbf' I /a0' � iPP ' I f? d? �• ME -H U CK-W-A-1.-L-A-R©AR S©5- l6G-do7 ' .04 IOi' ro. m EXH= VAN TO EXCLUSIVE AGREEMENT TO NEGOTIATE Psxl3a3wU0u-0006121�IW13�mrllros