HomeMy WebLinkAbout00347C - CALIFORNIA COMPANIES RAMON GENE AUTRY PROPERTY PURCHASE The California Companies
Agr to Negotiate for Develop
NW corner Ramon & Gene Autry
AGREEMENT #347C
Res 970, 3-15-95
EXCLUSIVE AGREEMENT TO NEGOTIATE
THIS EXCLUSIVE AG,$EEMENT TO NEGOTIATE (the "Agreement" ) is
made as of March 1 1995 by and between the PALM SPRINGS
COMMUNITY REDEVELOPMENT AGENCY (the "Agency") and THE CALIFORNIA
COMPANIES, a California Corporation ( "Developer" ) .
RECITALS:
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 sea. ) .
B. Agency currently owns that certain unimproved real
property located at the northeast corner of Gene Autry Trail and
Ramon Road consisting of approximately fourteen (14) acres and
legally described as set forth on Exhibit "A" attached hereto and
incorporated herein by reference (the "Site" ) .
C. The Site is located in the Palm Springs Ramon-Bogie
Redevelopment Project Area No. 4 (the "Redevelopment Area") .
Agency desires to effectuate the intent of the Redevelopment Area
plan by providing for the development of a restaurant/commercial
development upon the Site.
-D. The sale of the Site by Agency is subject to the approval
of The Luther Company Limited Partnership, a Minnesota Limited
Partnership ( "Luther" ) pursuant to that certain Agreement dated
September 19 , 1990 which requires that a certain minimum amount be
paid to Luther from the net sales proceeds and that the sale be
approved by Luther ( "Luther Approval" ) .
E . 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 sale of the Site to Developer on such terms .
NOW, THEREFORE, and in consideration of the mutual covenants
hereinafter contained, it is mutually agreed upon by the parties as
follows :
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SECTION 1. PERIOD OF NEGOTIATION
The period of negotiation shall be one hundred eighty (180)
days from the date this Agreement is signed by Agency. This
Agreement shall terminate after the expiration of such period
unless extended as follows :
A. For thirty (30) days if a disposition and development
agreement between Agency and Developer (the "DDA" ) 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; or
B. For thirty (30) days if the business terms 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
C. By mutual written 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
( "Agency Approval") .
Within thirty (30) days from the execution of this Agreement,
Developer shall submit to the Agency a Project proforma and any
supporting information reasonably required by Agency or its
independent financial advisor to analyze said proforma.
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 act 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.
SECTION 2 . NATURE OF NEGOTIATIONS.
A. 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 a DDA consistent with
the provisions of this section for the development of the real
estate development described in Recital C (the "Project") on the
Site. 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.
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B. Good Faith Deposit and Reimbursement. Developer has
submitted to the Agency an initial good faith deposit (the
"Negotiation Deposit" ) in the sum of SEVEN THOUSAND FIVE HUNDRED
DOLLARS ($7, 500 . 00) to insure that Developer will proceed
diligently and in good faith to negotiate and perform all of
Developer' s obligations under this Agreement. Agency may call for
additional supplemental deposits to cover its actual and reasonable
expenses incurred hereunder, which Developer shall make within ten
(10) days of the call therefor. If the Developer fails to deposit
said sums within the specified time period, such failure shall be
deemed to be the election of Developer not to proceed with the
transaction and this Agreement shall terminate. Developer
understands and agrees that the Negotiation Deposit will be used to
reimburse the Agency for its reasonable legal fees and costs
incurred for the negotiating and drafting of the agreements
necessary for the Project . The initial sum of SEVEN THOUSAND FIVE
HUNDRED DOLLARS ($7, 500) shall be used to reimburse the Agency for
its reasonable legal fees and costs incurred for the drafting of
this Agreement and the financial analysis of the Project to be
conducted by the Agency' s consultant upon submission of the Project
proforma by the Developer. 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 . Developer understands that
negotiation of the transaction and the drafting of the DDA shall
require the deposit of additional funds into the Negotiation
Deposit within ten (10) days of demand by the Agency which sum
shall initially be the additional sum of SEVEN THOUSAND FIVE
HUNDRED DOLLARS ($7, 500) . Developer understands that the amounts
specified are reasonable estimates but are not in any way to be
construed as a guaranty as to the total maximum costs which will be
incurred by the Agency. The Negotiation Deposit is in cash and has
been 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" (defined below) shall be returned to
Developer within ten (10) days after occurrence of any of the
following events :
(1) Either party determines in its good faith discretion,
based on new information not known on signing this
Agreement including the proforma analysis 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; or
(2) The Luther Approval is not obtained.
Agency shall pay from Negotiation Deposit (the "Deductions")
the sum of the following:
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(i) 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;
(ii) The Agency' s cost for an independent financial consultant
to analyze the Developer' s project proforma and further advise
to the Agency; and
(iii) Any similar reasonable and necessary fees and costs
incurred by the Agency for the Project; provided, however,
that prior to incurring any such fees and costs the Agency
shall obtain the Developer' s consent to incur them.
Except as listed above, if Developer fails to enter into a DDA
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 remaining
balance of the Negotiation Deposit as liquidated and agreed damages
as its sole and exclusive remedy.
Notwithstanding the foregoing, Developer understands that as
of the date of this Agreement, attorneys fees total approximately
Four Thousand Five Hundred Dollars ($4, 500) resulting from the nine
versions of this Agreement.
C. Site. The Project shall be located upon the Site,
consisting of approximately fourteen (14) acres of land located at
the northeast corner of Gene Autry Trail and Ramon Road. The DDA
will provide that the Site may be subdivided in accordance with
applicable law by Developer to establish a separate parcel for each
building site.
D. Purchase Price. The purchase price of the Site shall be
determined by the mutual agreement of the parties during the term
of this Agreement consistent with the financial analysis of the
Project prepared by the Agency' s financial consultant . As soon as
possible after the execution of this Agreement, Developer shall
deliver a copy of the Project proforma to the Agency. Developer
understands that the purchase price is subject to the Luther
Approval .
E. Developer' s Increased Deposit Under DDA. Concurrently
with the execution of the DDA, Developer shall deposit with Agency
an additional amount as mutually agreed to by the parties which
shall be added to the Negotiation Deposit and held by the Agency
( "DDA Deposit") under the terms of the DDA. The DDA shall provide
for, among other things, the payment by Agency from the DDA Deposit
of unpaid Deductions identified in this Agreement.
FS2\053\014094-0006\2114275.9 m03/13/95 -4-
F. Developer' s investigations and Conditions. Upon request
from Developer, Agency will provide Developer with a copy of that
certain document entitled "Interim Data Report on an Environmental
Site Assessment for Potential Hazardous Materials/Waste
Contamination, Palm Springs Land Fill, Northeast Corner of Gene
Autry Trail and Ramon Road, City of Palm Springs, County of
Riverside, California" dated August 6, 1993 created by Leighton &
Associates, Inc. The DDA shall provide that promptly following
execution of the DDA, 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; and (iii) such financial
feasibility and marketing studies as Developer may reasonably
require to support investment in and financing of, the Project.
G. 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
DDA. The schedule shall also specify an the outside date by which
construction of the Project shall commence, subject to extension
due to reasonable force majeure delays .
Agency shall agree in the DDA to use reasonable efforts to
assist the Developer in expediting the discretionary approval and
building permit applications of the Developer with the City.
H. Closing. The DDA shall provide that the sale of the Site
to Developer shall be handled by an escrow company acceptable to
both Agency and Developer. Agency shall convey or 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 provided by Agency to Developer prior to execution of the
DDA, unless the Agency agrees in the DDA to cause specified title
matters to be eliminated prior to the Closing. The entire Site
shall be purchased at the closing and the purchase price shall be
paid by Developer to Agency 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
F521053\014084-0006\2114275.9 m03113195 -5-
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.
I. Exclusivity. Agency agrees for the period set forth in
Section 1 above ( "Negotiation Period") 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.
SECTION 3 .ADDITIONAL RESPONSIBILITIES DURING NEGOTIATION
PERIOD.
A. Developer' s Responsibilities. Immediately following the
execution of this Agreement, Developer shall pursue the following:
(1) obtain sufficient input and commitment from tenants/users
to identify the date by which the such tenants/users will
enter into a purchase/sale agreements with the Developer;
(2) 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
purchase the Site in 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 traffic mitigation required in connection with
the Project; and
(3) negotiate the business terms of the DDA in accordance
with Section 2 above.
Developer shall also submit to the Agency as soon as possible
each of the following:
(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.
(ii) 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
FS2\053\014064-0006\2114275.9 .03113/95 -(-
lenders and tenants to satisfy the commitments necessitated by the
Project . To the extent Developer wants such financial statements
to remain confidential, they shall be supplied to the Agency only
if the confidentiality of the statements can be maintained.
(iii) Commitment letters from tenants/buyers for the Project
together with their respective land use and design requirements .
(iv) A proposed site plan for the Project .
(v) A Project proforma.
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
team. No prepared statements shall be released to the media
without the mutual consent of the respective negotiating teams.
B. Agency Responsibilities. If the parties are successful
in negotiating the necessary terms of the DDA and each confirms the
apparent feasibility of the Project from their perspective, then
Agency will commence the documentation of the DDA within thirty
(30) after such terms have been agreed upon. In connection with
such documentation, Agency will attempt to identify the City fees
and traffic mitigation measures that will be the responsibility of
Developer in connection with the development of the Project.
SECTION 4 . MISCELLANEOUS.
A. No Commissions. Agency shall not be liable for any real
estate commission or any brokers' fees which may arise herefrom.
B. 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 .
C. Purpose of Contract. It is expressly understood and
agreed by the parties hereto that this is an Agreement regarding
FS2\053\014094-0006\2114275.9 m03/13195 -7-
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.
C. Termination of Agreement. Upon termination of this
Agreement, Agency agrees that, for a period of six (6) months
after termination of this Agreement, the Agency will not contact
any tenant/user which is disclosed to Agency by Developer in
accordance with the requirements set forth in Section 3 above.
Nothing herein, however, shall prevent the Agency from dealing with
any such tenants/users which contact the Agency on their own
initiative after termination of this Agreement.
D. Amendment. This Agreement may only be amended by a
document in writing signed by the parties hereto.
E. 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.
F. 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: Redevelopment Agency of the City of
Palm Springs
Economic Development
PO Box 2743
Palm Springs, CA 92263-2743
Attn: Director
Copy to: Rutan & Tucker
611 Anton Boulevard, Suite 1400
Costa Mesa, California 92626-1998
Attn: David Aleshire, Esq.
To Developer: The California Companies
1240 Cougar Ridge Rd.
Buellton, CA 93427
Attn: Joel W. Mann, President
F52\0531014064-0006\2114275.9 .03113195 -8-
Copy to: Stephen Claman, Esq.
Greenberg, Glusker, Fields, Claman &
Machtinger
1900 Avenue of the Stars Suite 2000
Los Angeles, CA 90067-4590
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.
G. 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 .
H. 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 .
I . 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 .
FS2\053\014054-00➢5\2114275.9 m03/13/95 -9-
1N WITNESS WHEREO) ine parties have executed this Agreement
as oC the day first abnve written,
A SNOY_
ATTEST: PALM S! INCS COMMUNI D ' ELOPMENT
ACENCY
AT istanttSecretary ts; ` iv for
Date: L995
ATTEST:
APPROVED AS TO FORM:
RU'_'ArJ-& TITCKE R
Agency CounV61
IaFVEL02t
THE IFOl2.^TI COMPANIES, a
Ca.Litorn a Col ration
Date: MM 159E �sy:
Joel m4uu
Presi - n
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