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HomeMy WebLinkAbout00255C - PACIFIC HOSPITALITY GROUP PALM MOUNTAIN RESORT PA5B2 DOCUMENT TRACKING Page: 1 Report: Expired Documents Detail December 12, 2008 Condition: Oldest Date / 1,ALL Groups,ALL Services,ALL XREFs Document# Description Aooroval Date Expiration Date Closed Date A0255C ,. Owner Participation Agreement (Palm Mountain Resort formerly Desert... 11/07/1990 07/01/2005 Company Name: Pacific Hospitality Group Address: 11839 Soreento Valley Road, San Diego, CA 92121 'Yy Contact: Insurance Department Group: COMMUNITY & ECONOMIC `� I J Service: MIA ` xRef: JOHN RAYMOND (760) 323-8228 Ins. Status: Certificate and Policies are OK D_�rument Tracking Items: Due Completed Tracking Amount Amount Code Item Description Date Date Date Added Paid Amend No 1 Approved by CRA Resolution 847 02/05/1992 Memorandum of OPA Recorded. 02/04/1991 INSURANCE INFO NOT ENTERED Track Notes: Insurance Information is not entered as per contract the Insurance requirments do not activiate until under construction. Amend to MOU Recorded Doc. 395325 11/16/1996 Approved by CRA Resolution 735 11/07/1990 Amend. No. 2 Approved by CRA Resolution 1010 10/02/1996 kdh sent note to JR - OK TO CLOSE 03/06/2008 kdh Amend 3 Approved CRA Reso 1305 ----- fJ 09106/2066`09/06/2006 Track Notes: note from JR on 06-08 Agr has expire�3�he extension Expired in 10-2006 and was never executed f • -39532s RECEIVED FOR RECORD RECORDING REQUESTED BY AND AT 8:00 O'CLOCK WHEN RECORDED, RETURN TO: CITY CLERK OCT 16 1996 COMMUNITY REDEVELOPMENT AGENCY Pacific Hospitality Group OF THE CITY OF PALM SPRINGS Exh "A" to Second Amend to OPA P.O. BOX 2743 AGREEMENT #255C 3200 E. TAHQUITZ CANYON WAY Exec Dir Signed, 10-4-96 PALM SPRINGS, ,CA P2263 SPACE ABOVE LINE FOR RECORDER' S USE ONLY PACIFIC HOSPITALITY GROUP OWNER PARTICIP-155SBalardo (Palm Mtn. Resort) PA 5B2 Agreement RES . _ _/—/96 AMENDMENT TO MEMORANDUM OF OWNER PARTICIPATION AGREEMENT THIS AMENDMENT TO MEMORANDUM OF OWNER PARTICIPATION AGREEMENT (the "Amendment" ) is made by and between PACIFIC HOSPITALITY GROUP ( "Participant" ) and THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS ( "Agency" ) with reference to the following facts : A. Participant and Agency previously recorded that certain Memorandum of Owner Participation Agreement on January 11, 1991 as Instrument No. 12506 in the Official Records of Riverside County, California, which evidences the existence of that certain unrecorded Owner Participation Agreement dated January 7, 1991 ( "OPA" ) . B. Participant and Agency have entered into two (2) unrecorded amendments to the OPA, the first dated February 5 , 1992 and the second dated co 6�;f f 1996 . C. The purpose of this Amendment is to provide record notice of the amendments to the OPA to all interested parties . NOW, THEREFORE, in consideration of the foregoing and for other good and valuable considerations, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows : 1. This Memorandum is recorded solely for the purpose of providing record notice of the amendments to the Owner Participation Agreement. Reference is hereby made to the OPA as amended including, without limitation those amendments which restrict Participant' s right to transfer the benefits of those covenants made by Agency to Participant . EXHIBIT "A" TO FS2094\014084-0063\2158243.1 a09/04/96 SECOND AMENDMENT TO OWNER PARTICIPATION AGREEMENT IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the last date shown below. PARTICIPANT PACIFIC HOSPITALITY GROUP, a sole //proprietorship Date: � —( � 1996 By: 1! , : ,i William H. McWe/thy m AGENCY THE CO ITY REDEVEL PMENT AGENCY OF THE IT PAL INGS Date: ILI �� 1996 By: Its : ATTEST: -- APPROVED AS TO FORM- City Attorney FS2\094\014084-0063\2158243.1 .09/04/96 -2- • • 3 K5325 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No.5007 State of CALIFORNIA County Of SAN nTl�= On 9/13/96 before me SUSAN E. DORIN/NOTARY PUBLIC , DATE NAME,TITLE OF OFFICER-E G,"JANE DOE,NOTARY PUBLIC" WILLIAM H. MCWETHY, JR. personally appeared NAME(S)OF SIGNER(S) 0 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 ac- knowledged to me that he/she/they executed the same in his/her/their authorized SUSAN E.DORIN capacity(ies), and that by his/her/their z COMM.*982297 a : Z signature(s) on the instrument the person(s), z a"® - Notary Public—California a Z --� SANDIEGOCOUNTY or the entity upon behalf of which the My Comm.Fxp4#sJANI0.1 7 person(s) acted, executed the instrument. WITNESS my hand and official seal. SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE(s) TITLE OR TYPE OF DOCUMENT ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL "- ❑ ATTORNEY-IN-FACT NUMBER OF PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: DATE OF DOCUMENT Ir SIGNER IS REPRESENTING: NAME OF PERSON(S)OR ENTITY(IES) - SIGNER(S)OTHER THAN NAMED ABOVE ©1993 NATIONAL NOTARY ASSOCIATION•8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91 309-71 84 3 ,a�25 STATE OF CALIFORNIA ) ss . COUNTY OF ) On / before me, g, /� l Lt/m"� I,JJ) /)O774dk 1 61j- personally appe red ' personally known to me Epp PP =�7—��) to be the person s whose name SD is are subscribed to the within instrument and ack wledged to me that he/she they executed the same his/her their authorized capacity ies an that by his/her their signature on the instrument the persons or the entity upon behalf of which the person(ID acted, executed the instrument . Witt Is my hand and official seal . LAINE L.WEDEKINDCOMM a _ c Notary Public—California 1 ' � lL4x-ei RIVERSIDE COUNTY Notary Public My Comm.Expires FE3 3,1999 '[SEAL] STATE OF CALIFORNIA ) ss . COUNTY OF ) On before me, personally appeared personally known to me (or proved to me on the basis of satisfac- tory 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/their authorized capacity (ies) , and that by his/her/their signature (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 . Notary Public [SEAL] F52\094\014084-0063\2158243.1 a09/04/96 -3- 3` 53Z5 ' STATE OF CALIFORNIA ) ss . COUNTY OF ) On before me, personally appeared personally known to me (or proved to me on the basis of satisfac- tory 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/their authorized capacity (ies) , and that by his/her/their signature (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 . Notary Public [SEAL] STATE OF CALIFORNIA ) ss . COUNTY OF ) On before me, personally appeared personally known to me (or proved to me on the basis of satisfac- tory 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/their authorized capacity (ies) , and that by his/her/their signature (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 . Notary Public [SEAL] F52\094\014084-0063\2158243.1 a09104/96 -4- • Pacific Hospitality Gro*Second Amendment- Palm Mtn. Resort AGREEMENT #255 RES . /CJ / 0, /U _) , 1996 Pacific Hospitality Group Second Amend - Palm Mtn Resort AGREEMENT #255C SECOND AMENDMENT TO OWNER PARTICIPATION R1010, 10-2-96 THIS SECOND ENDMENT TO OWNER PARTICIPATION AGREEMENT dated as of ot-V i , 1996 ( "Second Amendment" ) is entered into between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic ( "Agency" ) and PACIFIC HOSPITALITY GROUP ( "Participant" ) . R E C I T A L S A. Agency and Participant entered into that certain Owner Participation Agreement dated January 7, 1991 and a First Amendment to Owner Participation Agreement dated February 5, 1992 (the "OPAII ) . All terms defined in the OPA shall have the same meaning when used in this Amendment, except as otherwise specifically set forth herein. B. In order to encourage the ongoing negotiations between Agency and Participant on development of a new project and pursuant to the Memorandum of Understanding dated April 12 , 1995 among the Agency, the City of Palm Springs and Palm Mountain Company, as amended by First Amendment to Memorandum of Understanding dated 1996, among said parties, Agency and Participant desire to amend the OPA as set forth below. NOW, THEREFORE, Agency and Participant hereby agree as follows : 1. Term. Article IV.C. 1 is hereby deleted and inserted in its place is the following: "1. Term. The Advance shall be repaid to Participant within a term (the 'Term' ) commencing on the date that Agency' s obligation to repay the Advance is perfected in accor- dance with Section IV.B. above and terminating July 1, 2008 . Notwithstanding the foregoing, if (i) Participant fails to commence construction of the 'Golf Course Project' (as defined in that certain Ground Lease Agreement between the City of Palm Springs and Mountain Falls Golf LLC entered into substantially concurrently with this Second Amendment) by entering into construction contracts for the Golf Course Project, obtaining all necessary permits and commencing grading by July 1, 2000; or (ii) the Golf Course Project is not completed and fully operational by July 1, 2002 , then the Term shall instead terminate on July 1, 2005 . The amount paid to 094/014084-0063/2151491.3 09104/96 Participw within said Term in acco*nce with the terms and conditions below, shall be deemed payment in full of any and all principal of the Advance. " 2 . Right to Assign. Article IV is hereby supplemented as follows : "Notwithstanding anything to the contrary contained in the OPA or elsewhere, the Agency' s covenants to assist the Project and to repay the Advance in accordance with Article II of the OPA, as amended, shall run with the Project and may be assigned or transferred to any other party who obtains an interest in the Project, which assignment shall be effective thirty (30) days after the date Agency receives from Participant a fully signed assignment and assumption of the OPA between Participant as assignor and a person or entity who has succeeded to all or substantially all of Participant' s interest in the Project as assignee. " 3 . Amendment to Recorded Memorandum. Concurrently with the execution of this Second Amendment, the parties hereto shall execute, acknowledge and deliver to the City Clerk for recordation a modification of the Memorandum of Owner Participation Agreement in the form attached hereto as Exhibit "A" . 4 . No Other Changes . Except as herein otherwise specifically provided, the OPA shall remain unchanged and continue in full force and effect . IN WITNESS WHEREOF, the parties hereto have entered into this Second Amendment as of the date set forth above. "AGENCY" COMMUNITY REDEVELOPMENT AGENCY OF THE CI PAL RIN S, CALIFORNIA, a pu is body, corpo at and politic By: Execut ' e Director ATTEST: By: G_�.,f - Secretary APPROVED AS TO FORM: RUTAN & TUCKER David (J._)Aleshire, Esq. Agency Counsel 0941014094-006312151481.3 .09/04/96 -2- i • • "PARTICIPANT" PACIFIC HOSPITALITY GROUP, a sole proprietorship By: William H. McWethY 094/014084-0063/2151481.3 a09/04/96 -3 - Pacific Hospitality Group First Amend - Palm Mtn Resort AGREEMENT ,'-#255 Res. 847, 2-5-92 FIRST AMENDMENT TO OWNER PARTICIPATION AGREEMENT This Firs Amendment to Owner Participation Agreement , dated as of -.S 19�---( "First Amendment" ) , is entered into between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS ( "Agency" ) and PACIFIC HOSPITALITY GROUP ( "Participant" ) . RECITALS A. Agency and Participant entered into that certain Owner Participation Agreement, dated January 7th, 1991 (the "OPA" ) . B. In order to encourage the on-going negotiations between Agency and Participant on development of a new project, Agency and Participant desire to amend the OPA as set forth below; NOW, THEREFORE, Agency and Participant hereby agree as follows: 1. Article III entitled "Project Description" is hereby deleted and inserted in its place is the following: "III . PROJECT DESCRIPTION A. Participant Obligations. The Participant agrees to substantially rehabilitate and renovate the existing eighty (80) room hotel on the Property and to provide for consistent facade treatment of Spanish Mediterranean design for the entire complex. The Participant further agrees to construct and develop an additional forty ( 40) new rooms on the Property which shall conform to the comprehensive conceptual plans for the Property. The comprehensive conceptual plans shall be submitted in accordance with the time established in the Schedule of Performance (which is incorporated herein and attached to this Agreement as Exhibit "B" ) . Said compre- hensive conceptual plans shall include a site plan and plan elevations, which shall provide for the integration of design and architectural style of the existing and new buildings and related landscaping and parking. The Participant shall be solely responsible for all costs of development, rehabilitation and construction and for all I 0 costs of off--site work necessary and required for development of the Property which off-site work shall include but is not limited to repair and reconstruction of City sidewalks adjacent to the Property and provisions of landscaping in the City right-of-way, all to city standards and approved by the Agency. Participant shall make a total investment of not less than $7 . 9 million for the Participant's development costs as defined in the "participant's project Investment, " Exhibit 111D, " attached hereto and incorporated herein by reference. B. Agency obligation. Agency and Participant are negotiating concerning development of a destination resort project including a golf course in the Tachevah Flood Control basin, These negotiations are not finalized but Agency ham encouraged Participant to acquire a parcel of real property necessary for this project. In return, Agency shall use its best efforts to cause City and Southern California Edison to take all necessary and appropriate action to approve the expenditure of "Rule 20" funds on a first priority basis to finance the undergrounding of some or all of the utility poles depicted on the map attached hereto as Exhibit "A. " 2 . Article TV.C.1 is hereby deleted and inserted in its place is the following: "1. Term The Advance shall be repaid to Participant within ten (10) years commencing from the date that Agency's obligation to repay the Advance is perfected (the "Term") in accordance with Section IV.B. , above. The amount paid to Participant within said Term in accordance with the terms and conditions below, shall be deemed payment in full of any and all principal of the Advance. " 3 . Except as amended hereby, the OPA remains in full force and effect and unmodified. -2- -_� IN WITNESS WHEREOF, the parties hereto have entered into this First Amendment as of the date set forth above. "Agency" COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS s By: e Bar Can i ecretary "Participant" PACIFIC HOSPITALITY GROUP, a sole prrop/r/ietors�h�iip} By: `'�/U/ l�7 J1Z� William H. McWethy 9/393/014084-0006/001 -3- .1]LJd -, ❑ .l ., " L' o n '�.,,� ❑ co --- �l_J7. " - a,J p �i'� ,` o� (1`;1� \ ❑� r❑r a — al 11 � W�1� F-\ � ��]` lL.�r''n J L.j J- 2 _. co r _ i� l ns ^-", �..,-o.. _ 0 I ',�,/,(_� I1rJ-,�7 IIIr� e Ij�' ^� _ ��• �.`n _AI �� "I� C3 i "O Z7—• Q �t��/ 1J o� \/ �]�.I�Q (({��J'1 oL✓ �I__ ' _ C� I✓N]1' - J fin op / rY �...._ t,'G ✓� `n'"`�.`,° "� —/ '-' 3 °,.S_;^�- � cc'z41`� . J , j/C�s�� J^C�'"V"�1�y('�``�Y'U„ � A6'b�'�"'vl✓o � a�, y A � _ �'� b�e � _ \,\ �/�-�' �� \ll 7��Div ��� C3 V' �J 7G ] Y AY _OOYN --- nr uv ✓9 � / �- I Recording Requested By u�(-;��, �) -u Ga;C9) Y/� � a'r and When Recorded Return To: � Community Redevelopment Agency P E__ G-t of the City of Palm Springs fi r- P. 0. Box 1786 � 3200 E. Tahquitz McCallum Q'A a Palm Springs , CA 92262 t Group . � • Hospltali Y Go�e r�do �nit R eSert'. ants mt Sbela AGREEMENT CONTAINING C AGREMr �IJtitle )PEATY R735, 11-7-90 THIS AGREEMENT is entered into this /� day of '� 1991 by and between PACIFIC HOSPITALITY"GROUP (hereinafter the "Owner" ) and COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and politic (hereinafter the "Agency" ) . WHEREAS , the Owner is the owner of the real property in the City of Palm Springs, County of Riverside, State of California (hereinafter the "Property" ) described in Exhibit A, attached hereto and incorporated herein by this reference; and WHEREAS , said Property is situated within the Oasis Redevelopment Project Area (hereinafter the "Project Area" ) in the City of Palm Springs (hereinafter the "City" ) , said Project Area being specifically described in the Redevelopment Plan (hereinafter the "Redevelopment Plan" ) for the Project Area; and WHEREAS , the Owner has entered into an Owner Participation Agreement (hereinafter the "OPA" ) by and between the Owner as Participant and the Agency, executed on ,a77� -1, r f r d , and has agreed to develop the Property in yaccordance with the Redevelopment Plan and said OPA. NOW, THEREFORE, the Agency and the Owner covenant and agree as follows : 1 . The Owner, its successors , assigns and any successor in interest shall develop, use and maintain the Property during construction and thereafter for uses in conformance with the Redevelopment Plan, this Agreement and the OPA. 1 507 2. Said Property shall be subject to the Redevelopment Plan. 3 . The Owner agrees to develop, rehabilitate, construct or cause the development, rehabilitation and construction of the following to be located on the Property: the substantial renovation of the existing eighty (80) room hotel and integration with the new development of forty (40) hotel rooms . 4. The provisions of this Agreement do not limit the right of any mortgagee or beneficiary under a deed of trust which secures construction or permanent financing to foreclose or otherwise enforce any mortgage, deed of trust or other encumbrance upon the Property or any portion thereof, or the right of any mortgagee or beneficiary under a deed of trust to exercise any of its remedies for the enforcement of any pledge or lien upon the Property; provided, however, that in the event of any foreclosure under any such mortgage, deed of trust or other lien or encumbrance, or a sale pursuant to any power of sale included in any such mortgage or deed of trust, the purchaser or purchasers and their successors and assigns and the Property shall be and shall continue to be subject to all of the conditions , restrictions and covenants contained herein. 5 . The covenants contained in this Agreement shall remain in effect during the duration of the Redevelopment Plan, except for the covenants against discrimination, which shall remain in perpetuity. 6 . The Agency, its successors and assigns , is deemed the beneficiary of the covenants contained herein, without regard to technical classification and designation. The covenants shall run in favor of the Agency and its City of Palm Springs , their successors and assigns , without regard to whether the Agency or City have been, remain or are owners of any land or interest therein. 7 . The provisions contained herein are covenants running with the land and shall bind the Owner and the successors and assigns of the Owner to the Property. 8 . The Agency, its successors and assigns, and the Owner, its successors and assigns , shall have the right to consent and agree to change or eliminate, in whole or in part, any of the covenants or restrictions contained in this Agreement without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Property, except any beneficiary under a deed of trust which secures construction or permanent financing. Page 2 of 5 125W) The covenants and restrictions contained in this Agreement shall not benefit or be enforceable by any owner of any other real property within or outside the Project Area, or any person or entity having an interest in any such other real property. Any -amendments to the Redevelopment Plan which change the uses or development permitted on the Property or otherwise change any of the restrictions or controls of the Redevelopment Plan that apply to the Property shall require the written consent of the Owner. Amendments of the Redevelopment Plan not applying to the Property shall not require the consent of the Owner. 9 . There shall be no discrimination or segregation of any person, or group of persons , on account of race, religion, color, national origin, ancestry, creed, handicap or marital status or sex in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property or any part thereof, nor shall the Owner itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants , lessees, subtenants , sublessees or vendees of the Property. 10 . The owner shall refrain from restricting the rental, sale or lease of the Property on the basis of race, religion, creed, color, national origin, ancestry, handicap or marital status or sex of any person. All such deeds , leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses : a. In deeds : The grantee herein covenants , by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of race, religion, creed, color, national origin, ancestry, handicap or marital status or sex in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants , lessees , subtenants , sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land. Page 3 of 5 b. In leases : The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through it, and this lease is made and accepted upon and subject to the following conditions : that there shall be no discrimination against or segregation of any person or group of persons on account of race, religion, creed, color, national origin, ancestry, handicap or marital status or sex in the leasing, subleasing, transferring, use or enjoyment of the land herein leased, nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants , lessees , sublessees , subtenants or vendees in the land herein leased. C . In contracts: There shall be no discrimination against or segregation of any person or group of persons on account of race, religion, creed, color, national origin, ancestry, handicap or marital status or sex in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee himself or any person claiming under or through him establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants , lessees , subtenants , sublessees or vendees of the land. Page 4 of 5 0 executed IN WITNESS WHEREOF, 125 this Agreement. the Agency �J� and the Owner havee "AGENCY" THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS CALIF ORNIA By. Approved: ATTEST: i OLIVER, �TOEh�ER, BARB- & VO � Assistant Secretary \+ SE covenahe owner herebY accepts in this A Conditions, concurs in and greement reservations and restr do agrees to aJ1 the coons set fortf, STATE OF CALIFORNIA) ) ss. COUNTY OF RIVERSIDE) On this ?_ day of '74 A-) 1991, before me, the undersigned Notary Public, personally appeared SONNY BONO and JUDITH SUMICH, known to me to be the Chairman and Assistant Secretary of the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, and known to me to be the persons who subscribed to the within instrument on behalf of the COMMUNITY REDEVELOMENT AGENCY OF THE CITY OF PALM SPRINGS and acknowledged to me that they executed the within instrument pursuant to its by-laws, or a resolution thereof. SEAL: q2� HELEN M. OSIER, NOTARY nNi�. `1 try �y b 71 +'b eupscribed --__ r_u��a WILLrAM —1 —rn�ric— tnat he exec it to the actorY~evidence H. McWETHn uted within instvi to be the SEAL: ment, and acknowpedged t fI, T y f 71 I F LEN M. ER,OST Nota p r � » C1737VPU�dr, e b'� ),y cs_ a, Page 5 of 5 UJ Recording Requested By and When Recorded Return To: P -i T a} /2 G� - - Comunity Redevelopment Agency00 y (t1 of the City of Palm Springs y U P. O. Box 1786 yp L 3200 E. Tahquitz McCallum Palm Springs, CA 92262 Pacific Hospitality Group - � Owner Particip - 155 S Belardo�• (Palm Mountain Resort PA5B2) AGREEMENT 255 R735, 11-7-90 MEMORANDUM OF OWNER PARTICIPATION AGREEMENT This Memorandum of Owner Participation Agreement (the "Memorandum" ) is by and between the Pacific Hospitality Group ( "Participant" ) and the Community Redevelopment Agency of the City of Palm Springs ( "Agency" ) , with reference to the following facts : A. Participant and Agency have entered into that certain Owner Participation Agreement dated C? 4- i, i < `✓ ,! 199,0 to effectuate the redevelopment plan for the Oasis Redevelopment Project Area, adopted by the City Council of Palm Springs by Ordinance No. 1224 on August 10 , 1984. B. Said OPA provides for Participant to rehabilitate, improve and develop the Palm Mountain Resort (formerly known as the Desert Inn Hotel) , in consideration of the Agency' s assistance to the project as more specifically provided in Section IV of the OPA. C. The purpose of this Memorandum is to provide record notice of the Owner Participation Agreement to all interested parties. NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable considerations , the receipt and adequacy of which are hereby acknowledged, the parties agree as follows : 1 . Upon and subject to the terms , provisions and conditions set forth in the Owner Participation Agreement, Participant and Agency each agree to undertake and perform each of their obligations under the Owner Participation Agreement. 2. This Memorandum is executed solely for the purpose of providing record notice of the Owner Participation Agreement and is not intended to alter or limit the rights of either party arising under the Owner Participation Agreement. Reference is hereby made to the Owner Participation Agreement for a full statement of the rights and obligations of the parties . Pacific Hospitality Group - Owner Particip - 155 S Belardo (Palm Mountain Resort PA5B2) AGREEMENT 255 5735, 11-7-90 OWNER PARTICIPATION AGREEMENT This Agreement is entered into this '`y day of 19.-9'6, by and between the COMMUNITY REDEVELOPMENT AGENCY/'OF THE CITY OF PALM SPRINGS ( "Agency" ) and PACIFIC HOSPITALITY GROUP ("Participant" ) . RECITALS A. The purpose of the Agreement is to effectuate the Redevelopment Plan for the Oasis Redevelopment Project Area ( "Plan" ) , adopted by the City Council of Palm Springs by Ordinance No. 1224 on August 10 , 1984 . B. The Participant owns certain real property (the "Property" ) within the Oasis Redevelopment Project Area ( "Project Area" ) . The Participant proposes to substantially rehabilitate and improve the Property as provided in this Agreement. C. The purpose of this Agreement is to specify Agency assistance in the implementation of the Participant' s proposed rehabilitation, improvement and redevelopment of the Property (all such activities as described in this Agreement constitute the "Project" ) . I. PARTIES TO THE AGREEMENT A. The Agency is a public body, corporate and politic, exercising governmental functions and powers and organized under the Community Redevelopment Law of the State of California. The offices of the Agency are located at 3200 East Tahquitz McCallum Way, Palm Springs, California 92262 . B. The Participant is William H. McWethy, sole proprietor of Pacific Hospitality Group, with his principal office located at 11839 Soreento Valley Road, San Diego, California 92121. II. PROPERTY DESCRIPTION A. The Property is that certain portion of the Project Area formerly known as the Desert Inn Hotel and now commonly known as Palm Mountain Resort. The Property is more specifically described as follows : Lots 1 through 16, inclusive, and lots 23 through 28 , inclusive, in Block 15 of Palm Springs , California, as shown by Map • ) 1 _ IN WITNESS WHEREOF, the parties have caused this Memorandum to be executed as of the last day shown below. Date: 644 �, ! "Participant" PACIFIC HOSPITALITY GROUP, a sole proprietorship William H. McW(�Ythy-- Date: C'l "-'r, "Agency" COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS BY: €3E'€'Rt"ED AS TO FORM `Chairman e BY= Secretary t � STATE OF CALIFORNIA: COUNTY OF RIVERSIDE : On January 7 , 1991, before me the undersigned, a Notary Public for the State of Californa, personally appeared WILLIAM H. McWETHY,- j,-Z:- proved to me on the basis of satisfactory evidence to be the person r-1 j�X- whose name is subscribed to the within instrument, and acknowleged that he executed it. SEAL: HELEN M. OSTER, Notary T ©F'F'ICIAL GI; .f"Y.I.A d r `IA:rbbe¢�° Wi;comm,Empi s Jut)V, on file in Book 9 , page 432 , Maps in the office of the County Recorder of Riverside County; together with the East 8000 feet of Orange Avenue (now known as Cahuilla Road) adjoining Lots 1 , 23 , 24 , 26, 27 and 28 as shown on said Map; all of said real property in the City of Palm Springs , County of Riverside, State of California. III. PROJECT DESCRIPTION The Participant agrees to substantially rehabilitate and renovate the existing eighty (80) room hotel on the Property and to provide for consistent facade treatment of Spanish Mediterranean design for the entire complex. The Participant further agrees to construct and develop an additional forty (40) new rooms on the Property which shall conform to the comprehensive conceptual plans for the Property. The comprehensive conceptual plans shall be submitted in accordance with the time established in the Schedule of Performance (which is incorporated herein and attached to this Agreement as Exhibit B) . Said comprehensive conceptual plans shall include a site plan and plan elevations , which shall provide for the integration of design and architectural style of the existing and new buildings and related landscaping and parking. The Participant shall be solely responsible for all costs of development, rehabilitation and construction and for all costs of off-site work necessary and required for development of the Property which off-site work shall include but is not limited to undergrounding of utility poles bordering the Property on Cahuilla Road, repair and reconstruction of City sidewalks adjacent to the Property and provision of landscaping in the City right-of-way, all to City standards and approved by the Agency. Participant shall make a total investment of not less than $7 . 9 Million for the Participant ' s development costs as defined in the "Participant ' s Project Investment" , Exhibit "D" , attached hereto and incorporated herein by reference . IV. AGENCY ASSISTANCE TO THE PROJECT Pursuant to Section 33135 of the Community redevelopment Law, the Agency is authorized to provide a rehabilitation grant to the Participant to assist the Project in implementing the objectives of the Redevelopment Plan (the "Agency Contribution" ) . The Agency shall therefore provide to the Project an amount equivalent to the tax increment and transient occupancy tax revenues attributable to the Project in consideration of Participant' s minimum investment of $7 . 9 Million dollars in accordance with the terms and provisions of this Agreement. 2 . A. Participant' s Advance of Grant Funds Agency acknowledges that Participant has obtained private financing for the Project secured by Participant' s personal creditworthiness and the Project. A portion of the funds from said financing is hereby deemed to be an advance by Participant to the Agency to fund the Agency Contribution to the Project (the "Advance" ) . The Advance shall be repaid to Participant under the terms and conditions as set forth in this Agreement. B. Effective Date of the Agency Rehabilitation Grant The Agency' s obligation to repay the Advance shall be perfected only upon the Participant' s completion of the Project evidenced by a Certificate of Occupancy issued by the City of Palm Springs ( "City" ) , the issuance of a Certificate of Completion in accordance with Section VI.A of this Agreement, and upon the Agency' s receipt and approval, of certified verification, submitted by the Participant to Agency, of a minimum expenditure of $7 .9 Million Dollars in accordance with Participant' s Project Costs (Exhibit D) . C. Terms for Repayment of the Advance 1 . Term The Advance shall be repaid to Participant within seven (7) years commencing from the date that Agency' s obligation to repay the Advance is perfected (the "Term" ) in accordance with Section IV.B . , above. The amount paid to Participant within said Term in accordance with the terms and conditions below, shall be deemed payment in full of any and all principal of the Advance. 2. Interest The Advance shall be non-interest bearing. 3 . Payment Amount On the first anniversary date of the commencement of the Term and thereafter semi-annually but no later than within 30 days of the Agency' s receipt of tax increment from the County Tax Collector, the Agency shall pay to Participant an annual amount equal to the aggregate amount of Net Tax Increment and Net Transient Occupancy Tax attributable to the Project not to exceed an annual sum of $210 , 000 ; except in the event that the aggregate amount of Net Tax Increment and Net Transient Occupancy Tax Increment attributable to the Project exceeds $210 , 000 per year, the Agency shall additionally pay fifty percent (50%) of said t. - 3 . excess toward the repayment of the Advance. For purposes of this Agreement: "Net Tax Increment" shall mean the total ad valorem property tax revenue attributable to the Project over and above the base year assessed valuation, which revenue is allocated and paid to the Agency for each fiscal year pursuant to Section 33670 (b) of the California Health and Safety Code, minus (1) the tax increment - revenues required to be set aside pursuant to Sections 33334 . 2 and 33334 . 3 of said Code for low and moderate income housing purposes; (2) the amounts allocated to or required to be paid to or for the benefit of other taxing entities by agreement pursuant to the terms of such agreements entered into between such entities and the Agency in effect at the date of this Agreement; and (3) provided, however, that the obligation to the Agency to pay to Participant Net Tax Increment is hereby expressly made subordinate to the pledge of tax increment by the agency to pay principal and interest on existing tax increment debt for the Project Area and the future pledge of tax increment by the Agency to pay principal and interest on any future tax allocation bond issue for the Project Area. The Agency hereby covenants that it will not take or permit to be taken any action, including the issuance of bonds , notes or other evidences of indebtedness payable from property tax increment, which would impair the Agency' s ability to make the payments required to be made hereunder or which would result in insufficient project property tax increment being available to make such payments, whether because of priors claims on such project property tax increment or otherwise. The "base year assessed valuation" for the Property is deemed to be $2 , 914 , 000 . "Net Transient Occupancy Tax Increment" shall mean transient occupancy tax revenues attributable to the Project over and above the base year transient occupancy tax revenues minus the two percent (2%) of the nine percent (9%) of the transient occupancy tax which is already committed to and designated for the Convention Center. Participant hereby expressly acknowledges that the commitment of transient occupancy tax revenues by the city to Agency' s repayment of the Advance is subject to the City' s annual appropriation of such revenues for such purpose. The Agency shall use its best efforts to insure that the City will take such actions as may be necessary to include payment of said revenues to Agency for Agency' s repayment of the Advance. The "base year transient occupancy tax revenues" attributable to the Project is deemed to be $70 , 000 . 4 . 6� ! • D. Memorandum of Agreement Agency and Participant agree to execute a memorandum of this Agreement in recordable form which shall include, but not be limited to, all of the provisions of this Section IV. Agency and Participant shall cause the memorandum to be recorded against the Property not later than thirty (30) days after the execution of this Agreement. V. USE OF THE PROPERTY The Participant covenants and agrees for itself , its successors, and assigns as follows : A. Uses The Property shall be devoted to uses specified in the Plan, as it now exists or is hereafter amended consistent with the provisions of this Agreement, and as provided in this Agreement and the Agreement Containing Covenants Affecting Real Property attached hereto as Exhibit "C" and incorporated herein by reference . Participant shall join in the execution and recording of the Agreement Containing Covenants Affecting Real Property imposing the covenants of this Agreement on the Property. The Agreement Containing Covenants Affecting Real Property shall be prior and superior to any of Participant' s loans resulting from the financing of the Property. B. Maintenance of the Property Participant shall maintain, consistent with normal and customary practice, the improvements and the landscaping on the Property and shall keep the Property free from any accumulation of debris or waste materials . C. Obligation to Refrain from Discrimination There shall be no discrimination against or segregation of any person or group of persons, on account of race, sex, handicap or marital status, color, religion, national origin or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the City, nor shall the Participant nor any person claiming under or through him established or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy or tenants , lessees , subtenants , sublessees , or vendees of the Property. 5 . r C. Participant shall refrain from restricting the ,sale, lease, sublease, rental, transfer, use, occupancy, tenure, or enjoyment of the Property (or any part thereof on the basis of sex, handicap or marital status , race, color, religion, creed, ancestry or national origin of any person, All such deeds , leases , contracts pertaining thereto shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses : 1 . In deeds : "The grantee herein covenants by and for itself, its successors and assigns , and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of sex, handicap or marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants , lessees, subtenants , sublessees, or vendees in the land herein conveyed. The foregoing covenants shall run with the land. " 2 . In leases : "The lessee herein covenants by and for itself, its successors and assigns , and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions : That there shall be no discrimination against or segregation of any person or group of persons , on account of sex, handicap or marital status , race, color, religion, creed, national origin, or ancestry, in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, or occupancy of tenants , lessees, sublessees, tenants , or vendees in the land herein leased. " 3 . In contracts : "There shall be no discrimination against, or segregation of, any person, or group of persons on account of sex, handicap or marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees , subtenants , sublessees, or vendees of the land. " 6. • D. Effect and Duration of Covenants The covenants established in this Agreement shall, without regard to technical classification and designation, be binding on the Participant and any successor in interest to the Property for the benefit and in favor of the Agency and the City, their successors and assigns . Except as set forth in the following sentence, the covenants contained in this Agreement shall remain in effect until the termination date of the Redevelopment Plan, — ` unless this Agreement provides for their earlier termination. The covenants against discrimination shall remain in perpetuity. VI. TERMS AND CONDITIONS A. Transfer and Assignment The Participant may transfer or sell the site consistent with the Plan and City ordinances but may not assign this Agreement to a third party substitute developer without the approval of the Agency, which the Agency shall not unreasonably withhold and which approval shall be based upon the following criteria: 1) the Proposed substitute developer' s past experience and success in developing, operating and managing similar comparable developments , 2) the substitute developer' s financial capacity and ability to undertake and complete the Project, and 3) provision for appropriate and reasonable protections and limitations within the assignment agreement between Participant and the proposed substitute developer which assures that the covenants , conditions and restrictions which run with the Property inure to the benefit of the Agency and City and are a burden of the substitute developer. Such purchaser shall be bound in writing by all of the terms and conditions of this Agreement. The Participant shall promptly notify the Agency of any proposed transfer or sale of the Property and shall advise any prospective purchaser or transferee of the terms of this Agreement. This restriction shall be applicable only until such time as the Agency issues a Certificate of Completion to the Participant for the Project. After receipt of such Certificate, the Participant may transfer or sell the Property without approval of the Agency. Such Certificate shall not constitute evidence of compliance with or satisfaction of Participant' s obligation to any lender. Such Certificate is not notice of completion as referred to in Section 3093 of the California Civil Code . B. Schedule of Performance Participant and Agency shall each begin and complete or cause to be begun and completed all of their respective obligations as provided in this Agreement within the times specified in the 7 . EF , Schedule of Performance (Exhibit B) , as such times may be extended as mutually agreed upon in writing by and between Participant and the Agency. C. Termination by Agency Subject to Section VI .E. , below, the Agency reserves the right to terminate this Agreement if the Participant fails to fulfill the requirements of this Agreement. D. Termination by Participant The Participant shall have the right to terminate its obligations under this Agreement if the Agency fails to fulfill the requirements of this Agreement by the dates stated therein. E. Notice of Termination Neither party shall terminate this Agreement unless the party seeking to terminate shall deliver a written demand to the other party, specifying the cause of the proposed termination and providing not less than thirty (30) days within which the other party may cure or commence to and diligently pursue to cure such default. F. Defaults - General Subject to the extensions of time set forth in this Agreement, and subject to the expiration of the curative periods set forth in Section E above, failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. The party who so fails or delays must immediately, upon written notice, commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy with reasonable diligence and during any period of curing shall not be in default. Any failures or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies . Delays by either party in asserting any of its rights and remedies shall not deprive either party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies . G. Legal Actions In addition to any other rights or remedies , either party may institute legal action to cure, correct, or remedy any default to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement except that there 8 . V- shall be no right to terminate this Agreement except as set forth in this Agreement. Such legal actions must be instituted in the Superior Court of the County of Riverside, State of California, in any other appropriate court in that County, or in the Federal District Court in the Central District of California. H. Applicable Law The laws of the State of California shall govern the ---- interpretation and enforcement of this Agreement. I. Service of Process In the event that any legal action is commenced by Participant against the Agency service of process on the Agency shall be made by personal service upon the Executive Director or Chairman of the Agency, or in such other manner as may be provided by law. In the event that any legal action is commenced by the Agency against the Participant, service of process on the Participant shall be made by personal service upon an officer of the Participant or in such manner as may be provided by law, and shall be valid whether made within or with out the State of California. J. Rights and Remedies are Cumulative Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times of any other rights or remedies for the same default or any other default by the other party. K. Damages If either party defaults with regard to any of the provisions of this Agreement, the nondefaulting party shalt serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of the notice of default, the defaulting party shall be liable to the other party for damages caused by such default. L. Specific Performance If either party defaults under any of the provisions of this Agreement, the nondefaulting party shall serve written notice of such default upon such defaulting party. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly within a reasonable time after the commencement; the nondefaulting party, at its option, may institute an action for specific performance of the 9 . terms of this Agreement. M. Force Maieure Notwithstanding specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war; insurrection; strikes; lock-outs; labor disputes ; riots; floods; earthquakes ; fires; casualties ; acts of God; action of the elements; acts of the -- public enemy; epidemics; quarantine restrictions; freight embargoes ; lack of transportation; governmental restrictions or priority; litigation including litigation challenging the validity of this transaction or any element thereof; usually severe weather; inability to secure necessary labor, materials or tools ; delays of any contractor, subcontractor, or suppliers ; acts of the other party; acts or failure to act of the City or any other public or governmental agency or entity (other than acts or failure to act of the City shall not excuse performance by the Agency) ; or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the Agency and Participant. VII. GENERAL PROVISIONS A. Agency Emplovees Members No member, official, or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official, or employee participate in any corporation, partnership, or association in which he is, directly or indirectly, interested. No member, official, or employee of the Agency shall be personally liable to Participant or any successor in interest in the event of any default or breach by the Agency or for any amount which may become due to Participant or successor or any obligations under the terms of this Agreement. B. Right to Enter The employees and agents of the Agency shall, upon reasonable notice during normal business hours , have access to the Property for the purposes of making such inspection, surveys, and examinations of the same as may be reasonable and necessary in the performance of its obligations to carry out the Redevelopment Plan. 10 . C. Indemnification and Insurance During periods of construction on the Property and until such time as the Agency has issued to Participant a Certificate of Completion for the construction and development of the improvements on the Property, Participant agrees to, and shall, indemnify and hold the Agency and the City harmless from and against all liability, loss , damage, costs , or expenses (including attorneys ' fees and court costs) arising from or as a result of the death of -_ any person or any accident, injury, loss and damage whatsoever caused to any person or to the property of any person which shall occur on or adjacent to the Property and which shall be caused by any negligent acts or willful misconduct of Participant and its agents , servants, employees and contractors . Prior to the commencement of construction on the Property, Participant shall furnish or shall cause to be furnished, to the Agency, duplicate originals or appropriate certificates of bodily injury and property damage insurance policies in the amount of at least $1, 000, 000 combined single limits, naming the Agency and the City as additional insureds . Such insurance shall be maintained and kept in force until the Agency has issued its Certificate of Completion for the entire Property. Such insurance shall be primary for losses arising out of Participant' s performance of the Agreement. Neither the Agency, the City, nor any of their insurers shall be required to contribute to any such loss . All policies or certificates issued by the respective insurers for insurance shall provide that such policies or certificates shall not be cancelled or materially changed without at least thirty (30) days prior written notice to the City and the Agency. Copies of such policies or certificates shall be deposited with the City and the Agency together with appropriate evidence of payment of the premiums therefor; and, at least thirty (30) days prior to expiration dates of expiring policies or contracts held by said City and Agency, copies of renewal or new policies 'or contracts or certificates shall be deposited with said City and Agency. D. Attorneys' Fees In the event either party commences legal proceedings for any relief against the other party arising out of this Agreement, the losing party shall pay the prevailing party' s legal costs and expenses, including but not limited to, reasonable attorneys ' fees as determined by the court. 11. VIII. ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS This Agreement shall be executed in five duplicate originals each of which is deemed to be an original. This Agreement includes 13 pages and 4 attachments which constitute the entire understanding and agreement of the parties . This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the Property. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Agency and Participant and all amendments hereto must be in writing and signed by the appropriate authorities of the Agency and Participant. 12 . Cr VIII. TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY This Agreement, when executed by Participant and delivered to the Agency, must be authorized, executed and delivered by the Agency within the time established therefor in the Schedule of Performance, or this Agreement may be terminated by Participant on written notice to the Agency. The date of this Agreement shall be the day and year as first above written. "Agency" COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS .., v i i':'; 1 K Chairma By C l~� _ Secretary "Participant" PACIFIC HOSPITALITY GROUP, a sole proprietorship 1 7— Ci,v45�ss,;i ^,Y L,L i'..c.: 3, vly+%. ' �����cg{) _ i✓•'�fgN { �"—!� ' V � William H. Mc STATE OF CALIFORNIA: COUNTY OF RIVERSIDE : On January 7 , 1991, before me the undersigned, a Notary Public for the State of California, personally appeared WILLIAM H. McWETHY, proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrucment, and acknowledged that he executed it. SEAL: i HELEN M. STER, Notary %y .1.G`u!;::;;.1 i r a r lay v it fluI RVEDE�Fti�Soir `A,,,y N` Pdy Comm.ExBiresJul iN,,ims 13 . — it < EXHIBIT B SCHEDULE OF PERFORMANCE 1. Execution of the Agreement by Within forty-five (45) Ag nc (days) after execution of this Agreement by the Participant. 2. Submission - Comprehensive Concept Completed May 18 , 1990 . Drawings - Participant shall prepare and submit to the Agency Comprehensive Concept Drawings . 3 . Approval - Comprehensive Concept Completed June 27 , 1990. Drawings - Agency shall approve or disapprove the Comprehensive Concept Drawings. 4 . Submission - Design Development Completed May 18, 1990 . Plans and Preliminary Landscape Plans - Participant shall prepare and submit to the Agency Design Development Plans and Preliminary Landscape Plan. 5 . Approval - Design Development Completed June 27 , 1990 . Plans and Preliminary Landscape Plan - Agency shall approve or disapprove the Design Development Plans and Preliminary Landscape Plan . Exhibit B Page 1 of 2 AR 6 . Submission - Final Construction Within sixty (60) days Drawings , Finish Grading Plan after the Agency approval and Final Landscaping Plan - of Design Development Participant shall prepare and Plans and Preliminary submit to the Agency Final Landscape Plan. Construction Drawings and Speci- fications, Finish Grading Plans and a Final Landscaping Plan. 7. Approval - Final Construction Within thirty (30) days Drawings, Finish Grading Plan after receipt by the and Final Landscaping Plan - The Agency. Agency shall approve or disapprove the Final Construction Drawings and Specifications , Finish Grading Plan, and Final Landscaping Plan. 8 . Commencement of Construction - Participant has Participant shall commence commenced rehabilitation construction of the Project. as of July 1 , 1990 . Participant shall commence construction of the new 40 hotel rooms within thirty (30) days after issuance of a building permit by the City. 9 . Completion of Construction - Within eighteen (18) Developer shall complete months after commence- construction of the entire ment of construction. Project. Exhibit B Page 2 of 2 Recording Requested By and When Recorded Return To: Community Redevelopment Agency of the City of Palm Springs P. 0. Box 1786 3200 E. Tahquitz McCallum Palm Springs, CA 92262 EXHIBIT C AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY y THIS AGREEMENT is entered into this day of � .zi /°9/) , -19� by and between PACIFIC HOSPITALIT GROUP (hereinafter the "Owner" ) and COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS , CALIFORNIA, a public body, corporate and politic (hereinafter the "Agency" ) . WHEREAS , the Owner is the owner of the real property in the City of Palm Springs, County of Riverside, State of California (hereinafter the "Property" ) described in Exhibit A, attached hereto and incorporated herein by this reference; and WHEREAS , said Property is situated within the Oasis Redevelopment Project Area (hereinafter the "Project Area" ) in the City of Palm Springs (hereinafter the "City" ) , said Project Area being specifically described in the Redevelopment Plan (hereinafter the "Redevelopment Plan" ) for the Project Area; and WHEREAS , the Owner has entered into an Owner Participation Agreement (hereinafter the "OPA" ) by and between the Owner as Participant and the Agency, executed on and has agreed to develop the Property in accordance with the Redevelopment Plan and said OPA. NOW, THEREFORE, the Agency and the Owner covenant and agree as follows : 1 . The Owner, its successors, assigns and any successor in interest shall develop, use and maintain the Property during construction and thereafter for uses in conformance with the Redevelopment Plan, this Agreement and the OPA. k` 2. Said Property shall be subject to the Redevelopment Plan. 3 . The Owner agrees to develop, rehabilitate, construct or cause the development, rehabilitation and construction of the following to be located on the Property: the substantial renovation of the existing eighty (80) room hotel and integration with the new development of forty (40) hotel rooms . 4 . The provisions of this Agreement do not limit the right of any mortgagee or beneficiary under a deed of trust which secures construction or permanent financing to foreclose or otherwise enforce any mortgage, deed of trust or other encumbrance upon the Property or any portion thereof, or the right of any mortgagee or beneficiary under a deed of trust to exercise any of its remedies for the enforcement of any pledge or lien upon the Property; provided, however, that in the event of any foreclosure under any such mortgage, deed of trust or other lien or encumbrance, or a sale pursuant to any power of sale included in any such mortgage or deed of trust, the purchaser or purchasers and their successors and assigns and the Property shall be and shall continue to be subject to all of the conditions , restrictions and covenants contained herein. 5 . The covenants contained in this Agreement shall remain in effect during the duration of the Redevelopment Plan, except for the covenants against discrimination, which shall remain in perpetuity. 6. The Agency, its successors and assigns, is deemed the beneficiary of the covenants contained herein, without regard to technical classification and designation. The covenants shall run in favor of the Agency and its City of Palm Springs, their successors and assigns, without.. regard to whether the Agency or City have been, remain or are owners of any land or interest therein. 7 . The provisions contained herein are covenants running with the land and shall bind the Owner and the successors and assigns of the Owner to the Property. B . The Agency, its successors and assigns , and the Owner, its successors and assigns, shall have the right to consent and agree to change or eliminate, in whole or in part, any of the covenants or restrictions contained in this Agreement without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Property, except any beneficiary under a deed of trust which secures construction or permanent financing. Exhibit C Page 2 of • 0 The covenants and restrictions contained in this Agreement shall not benefit or be enforceable by any owner of any other real property within or outside the Project Area, or any person or entity having an interest in any such other real property. Any amendments to the Redevelopment Plan which change the uses or development permitted on the Property or otherwise change any of the restrictions or controls of the Redevelopment Plan that apply to the Property shall require the written consent of the Owner. Amendments of the Redevelopment Plan not applying to the Property shall not require the consent of the Owner. 9 . There shall be no discrimination or segregation of any person, or group of persons , on account of race, religion, color, national origin, ancestry, creed, handicap or marital status or sex in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property or any part thereof, nor shall the Owner itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. 10 . The owner shall refrain from restricting the rental, sale or lease of the Property on the basis of race, religion, creed, color, national origin, ancestry, handicap or marital status or sex of any person. All such deeds , leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: a. In deeds : The grantee herein covenants , by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of race, religion, creed, color, national origin, ancestry, handicap or marital status or sex in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees , subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land. Exhibit C Page 3 of � 0` b. In leases: The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through it, and this lease is made and accepted upon and subject to the following conditions : that there shall be no discrimination against or segregation of any person or group of persons on account of race, religion, creed, color, national origin, ancestry, handicap or marital status or sex in the leasing, subleasing, transferring, use or enjoyment of the land herein leased, nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants , lessees, sublessees, subtenants or vendees in the land herein leased. C. In contracts : There shall be no discrimination against or segregation of any person or group of persons on account of race, religion, creed, color, national origin, ancestry, handicap or marital status or sex in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee himself or any person claiming under or through him establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants , lessees , subtenants, sublessees or vendees of the land. Exhibit C Page 4 of V- i • IN WITNESS WHEREOF, the Agency and the Owner have executed this Agreement. "AGENCY" THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRIG$, CALIF04NIA By: Approved: OLIVER, STOEVER, BARR & VOSE r By: The Owner hereby accepts, concurs in and agrees to all the covenants, conditions , reservations and restrictions set forth in this Agreement. "OWNER" PACIFIC HOSPITALITY GROUP By: Its : — STATE OF CALIFORNIA: COUNTY OF REIVERSIDE: On January 7 , 1991, before me the undersigned, a Notary Public for the State of California, personally appeared WILLIAM H. McWETHY, proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument, and acknowledged that he executed it. SEAL: A ;OSeTER (Notary) IIELEN M � i Et!CECd51flC�ft�'f�'rd aaro"� COMM.Expn3duly 19 -IL—D�. Exhibit C Page 5 of — f EXHIBIT D PARTICIPANT' S PROJECT INVESTMENT Land: The actual cost to Participant to acquire the real property, but excluding any broker' s commission, finder' s fees or developer fees . Buildings : A sum equal to: a. The actual cost to Participant to acquire existing structures on the Property i. e. , the Participant ' s acquisition cost less Land, FF&E and existing Site costs . b. The actual costs of construction for all on-site structures , including but not limited to: 1. Construct new 40 hotel rooms 2. Rehab existing 80 hotel rooms 3 . Miscellaneous construction items not to exceed 5% of hard costs for construction and reasonable and normal contractors ' fees . 4 . Restaurant rehabilitation and other facilities. Site : The actual costs to improve and/or construct both on- and off- site utilities services for the Property and to undertake demolition, site clearance, landscaping and grading as necessary. FF&E• The actual costs to improve the Property with furniture, fixtures and equipment, including but not limited to the wine cellar and appurtenances , toilet fixtures and inter-company transfers . Financing: A sum equal to costs actually paid by Participant as financing fees charged by the construction and/or permanent lenders for the acquisition, construction and/or permanent loans for the Project, 0 M including interest paid and any interest savings resulting from equity investment above the normal requirements for such projects in lieu of debt financing. Pre-Opening: The reasonable costs for franchise, signage, sales and marketing brochures and printing, salaries and training, opening -_ inventory hotel, opening restaurant, 2 vehicles , miscellaneous, not to exceed the amount of $370, 000 , Professional Services : Architecture, Engineering, (Civil and Soils) , Design-Interior, Landscape, Irrigation, Lighting, Legal, Accounting and Tax, Appraisal, Market Studies , Utilities Study, Artistry, Food and Beverage Consulting. Indirect Costs: Taxes-Real and Personal Property, Insurance, Permits, Fees , Deposits . Developer Overhead: The construction management/development costs of Participant charged to the Project including but not limited to Project Manager, Assistant Project Manager, Clerical, Corporate Support, but not to exceed 5% of total cost of the Project. Restaurant: The actual costs to construct and develop a first class restaurant: New Roof, Major Kitchen Repair, Complete In.ter.ior Design Change, New PF&E Package Exhibit D Page 2 of 3 f� < Example: l Land 1, 068 , 000 Site 714 , 000 Building 2, 728 , 000 Prof. Services 280 , 000 Indirect Costs 287 , 000 Pre-opening 370 , 000 FF&E 1, 084, 000 Financing 690 , 000 Dev. overhead 180 , 000 Restaurant 200 , 000 Contingency 300 , 000 $ 7 , 901 , 000 1 In the event that Participant uses its own forces or a construction firm owned by Participant, to undertake development and construction of the Project, the construction elements shall be costed at prevailing market rates for labor and materials provided to the Project. Exhibit D Page 3 of 3 lir < e�91l�®e�1® CERTIFICAE OF INSUTAJCE ISSUE DATE(MM/ Ili 9_-26-90-90mb -' �PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND MICHAEL EHRENFELD COMPANY ( CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE r DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE 3333 Camino Del Rio South Po�1cIEs._aE�ow. _ __-___ .___— Suite 160 COMPANIES AFFORDING COVERAGE San Diego, CA 92108 1(619) 280-5272 LETTERYA Golden Eagle Insurance Company E I COMPANY i INSURED LETTER B RrE 6 EIVED u 'PALM MOUNTAIN RESORT, eta, COMPANY C �11839 Sorrento Valley Road LETTER 'San Diego, CA 92121 coMPa v LETTER Db' , �r 1 COMPANY E LETTER ! COVERAGES l THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD I 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. III CO POLICY EFFECTIVE POLICY EXPIRATION ' �LTR TYPE OF INSURANCE POLICY NUMBER DATE(MM/DD/VY) DATE(MM/DD/YY) LIMITS GENERAL LIABILITY GENERAL AGGREGATE $Z,OOO,OOO ACOMMERCIAL 4 GENERAL LIABILITY CCP 120876 6-29-90 6-29-91 PRODUCTS-COMP/OP AGO. $1 / 000,000 CLAIMS MADE X OCCUR. PERSONAL&ADV.INJURY $1 ,000,OOO OWNER'S&CONTRACTOR'S PROT EACH OCCURRENCE $1 ,000,000 FIRE DAMAGE(Any one fire) $ 50 ,000 COMBINED SINGLE $ ill MED.EXPENSE An ane p erson) $ , AUTOMOBILE LIABILITY C ANY AUTO LIMIT ALL OWNED AUTOS BODILY INJURY $ l p SCHEDULED AUTOS (Per person) HIRED AUTOS ` BODILY INJURY NON-OWNED AUTOS (Per accident) $ ICI GE LIABILITY V, ip PROPERTY DAMAGE $ EXCESS LIABILITY EACH OCCURRENCE $ h ° UMBRELLA FORM AGGREGATE $ '- - _OTHER THAN UMBRELLA FORMSTATUTORY V WORKER'S AND COMPENSATIONEACH DISEASE—POLICY CIDENTLIMITS --- $ - -- - I A I EMPLOYERS'LIABILITY ! DISEASE—EACH EMPLOYEE $ ,II OTHER DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS YYY Re: 155 South Belardo, Palm Springs , California CERTIFICATE HOLDER /ADDITIONAL INSURED CANCELLATION ,THE CITY OF PALM SPRINGS & SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE ` COMMUNITY REDEVELOPMENT AGENCY OF EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO THE CITY OF PALM SPRINGS MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE P .O. BOX 1786 LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR 41 PALM SPRINGS, CA 92263 LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES ' _l ,ZED PRESE A/T�I]VEn ACORD 25-S (7/90) - - ©ACOIsU CORP02ATION 1990 POLICY NUMBER: CCp 120876 COMMERCIAL GENERAL LIABILITY TM5 ENDORSEMENT CHAbHGES THE MUM PLEASE READ IT CAREFULLY. ADDITIONAL INSURED-DESIGNATED PERSON OR ®R ANiZAMN This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART, SCHL®ULE Narne of Person or Organization: THE--CITY- OF PALM—SPRINGS & ---- - - -- --- -P-alm--Mountain Resort COMMUNITY REDEVELOPMENT AGENCY OF 155 South Belardo THE CITY OF PALM SPRINGS Palm Springs, CA P.O. BOX 1786 PALM SPRINGS, CA 92263 (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or rented to you. y MICHAEL—EHRENFELD COMPANY CG 20 26 11 85) Copyright, Insurance Services Office, Inc., 1984 ❑