HomeMy WebLinkAbout00253C - LUTHER COMPANY EPSTEEN AUTO CENTER PA4B11 0
TERMINATION AGREEMENT
This Termination Agreement is entered into to be effective
the /' day of ' —; -' , 1990 by and between The Luther
Company Limited Partnership, a Minnesota limited partnership
("Luther") and The Community Redevelopment Agency of the City of
Palm Springs, California ("Agency") .
R E C I T A L S:
WHEREAS, Luther, Agency and the City of Palm Springs,
California have entered into that certain Agreement dated
7 1990; a true and accurate copy of the fully executed
Agreement is attached to this Termination Agreement as Exhibit "A"
and incorporated herein by this reference for all purposes (the
"Agreement") ; and
WHEREAS, pursuant to the terms of the Agreement, Luther and
Agency are obligated to, among other matters, execute a
termination of the Parcel 1 DDA and the Parcel 2 DDA, as those
terms are defined in the Agreement; and
WHEREAS, Agency and Luther, by execution of this Termination
Agreement, are terminating all rights, duties and obligations of
the parties arising out of or connected with the Parcel 1 DDA and
the Parcel 2 DDA.
NOW, THEREFORE, in consideration of the recitals and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by each of the parties hereto,
Luther and Agency hereby agree as follows:
1. Termination of Parcel 1 DDA and Parcel 2 DDA. Luther
and Agency hereby agree and declare that the Parcel 1 DDA and the
Parcel 2 DDA are hereby terminated and shall be of no further
force and effect and neither party shall have any continuing
liability, right, duty or obligation for any matter arising out of
or connected with the Parcel 1 DDA and the Parcel 2 DDA prior to
this termination.
2 . Retention of Parcel 2 Deposit by Agency. In
consideration of the termination of the Parcel 2 DDA, Agency is
hereby authorized by Luther to retain the sum of $59, 664
previously deposited by Luther with Agency as security for
Luther's performance under the Parcel 2 DDA.
3 . Binding on Successors and Assigns. This Termination
Agreement shall be binding upon, and inure to the benefit of
Luther and Agency and their respective successors and assigns.
4. Governing Law. This Termination Agreement is entered
into, and shall be construed and interpreted in accordance with,
the laws of the State of California.
5. Further Cooperation. The parties agree, each to the
other, to execute and deliver all such other instruments and
documents as may be necessary or appropriate in order to complete
or clarify the transactions taken herein.
IN WITNESS WHEREOF, the parties hereto have executed this
Termination Agreement on the date first above written.
LUTHER•
The Luther Company Limited
Partnership, a Minnesota
limited par ership
Rudy Luther, General Partner
AGENCY:
Community Redevelopment Agency of
the City of Palm Springs, California
Chairman
i
and
Secretary
RDW95m
The Luther Company - PA4B11
Sale of Auto Center Site
AGREEMENT #253
AGREEMENT R728, 9-19-90
This Agreement is entered into this % day of
1990 by and among The Luther Company Limited Partnership, a
Minnesota limited partnership ("Luther") ; the Community
Redevelopment Agency of the City of Palm Springs, California
("Agency") ; and the City of Palm Springs, California ("City") .
R E C I T A L S:
WHEREAS, Luther is the owner of that certain real property
situated in the City of Palm Springs, California more
particularly described as being Parcel 1 of Parcel Map 18787, in
the City of Palm Springs, County of Riverside, State of
California, as per Map recorded in Book 135, Pages 53 and 54 of
Parcel Maps in the office of the County Recorder of said county
("Parcel 111) ; and
WHEREAS, Parcel 1 is currently encumbered by that certain
Disposition and Development Agreement by and between the Agency
and Peter Epsteen - Pontiac - Buick - Rolls Royce - British
Imports, Inc. , Ltd. ("Epsteen") dated April 3 , 1986, as amended
by that certain Consent to Assignment and Amendment to Agreement
by and among Luther, Agency, and City dated January 19, 1987,
(the Disposition and Development Agreement, as amended, is called
the "Parcel 1 DDA") and is further encumbered by that certain
Deed of Trust dated April 16, 1986, (the "Parcel 1 Deed of
Trust") which secures that certain promissory note of even date
therewith in the original principal amount of $885, 000 executed
by Epsteen and payable to the order of the Agency (the "Parcel 1
Note") and certain other obligations more particularly described
therein indicating Epsteen, as Trustor, Ticor Title Insurance Co.
as Trustee and Agency as Beneficiary, recorded in Book 88 , Page
472, of the real property records of Riverside County, California
(the Parcel 1 DDA, the Parcel 1 Note and the Parcel 1 Deed of
Trust are collectively called the "Parcel 1 Security
Instruments") ; and
WHEREAS, Luther and the Agency previously entered into that
certain Disposition and Development Agreement dated May 20, 1987
(the "Parcel 2 DDA") which encumbers that certain real property
situated in Palm Springs, California, more particularly described
as being Parcel 2 of Parcel Map 18787, in the City of Palm
Springs, County of Riverside, State of California, as per map
recorded in Book 135, Page 53 and 54 of Parcel Maps, in the
office of the County Recorder of said county ("Parcel 211)
pursuant to which Parcel 2 DDA Luther has the right to purchase
Parcel 2 ; and
WHEREAS, Luther has previously deposited the sum of $59, 664
with Agency as security for Luther's performance under the Parcel
2 DDA (the "Parcel 2 Deposit") ; and
WHEREAS, the parties have agreed to modify the rights,
duties and obligations of the parties as hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing recitals,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties,
Luther, Agency and City hereby agree as follows:
1. Conveyance of Parcel 1 and Termination of Parcel 1
Security Instruments. Within ten (10) days after the full
execution of this Agreement, Luther shall convey Parcel 1 to
Agency by quit claim deed. Simultaneously with the conveyance of
Parcel 1, the Parcel 1 Security Instruments shall be deemed to be
terminated and rendered null and void, said termination to be
evidenced by Agency and Luther executing a termination of the
Parcel 1 DDA; Agency executing and recording a Deed of
Reconveyance terminating the Parcel 1 Deed of Trust; and Agency
marking the Parcel 1 Note cancelled and delivering the same to
Luther.
2 . Termination of Parcel 2 DDA. Within ten (10) days
after the full execution of this Agreement, Agency and Luther
shall execute a termination of the Parcel 2 DDA. In
consideration of the termination of the Parcel 2 DDA, Agency
shall be entitled to retain the Parcel 2 Deposit as liquidated
damages.
3 . Mutual Release. Upon full execution of this Agreement,
each of the parties to this Agreement, for themselves and their
respective successors and assigns, hereby release the other
parties and their respective agents, officers, directors,
partners and employees from any claims, causes of action, or
liability, under the Parcel 1 DDA, Parcel 2 DDA, Parcel 1
Security Instruments, Parcel 1 Note, or for any other matter
connected therewith including any other matter connected with
Parcel 1 and Parcel 2 .
4. Sale of Parcel 1. Agency shall use due diligence to
sell Parcel 1 to a third party for the highest possible price and
consistent with the objectives of the Ramon-Bogie Redevelopment
Project adopted December 30, 1983 by the City Council of the City
of Palm Springs by Ordinance No. 1202 . The proceeds from the
sale of Parcel 1 shall be disbursed as follows:
(a) First the payment of all costs of the sale
including brokerage commissions (not to exceed six percent
(6%) ) , reasonable attorneys' fees, escrow fees, property
taxes and assessments, transfer taxes and other reasonable
and customary expenses paid by a seller in Riverside County,
California including a fee to Agency of a sum not to exceed
one percent (1%) of the total sales price to reimburse
Agency for any expenses actually incurred by Agency relating
to the marketing and sale of Parcel 1;
•
(b) Next to the reimbursement of Agency in the amount
of $1, 307, 628;
(c) Next to the reimbursement of Luther in the amount
of $1,221, 880;
(d) Next to the allocation to Agency and to Luther pro
rata with Agency to receive fifty-two percent (52%) and
Luther to receive forty-eight percent (48%) of the remaining
balance of the sale proceeds.
Any contract for the sale of Parcel 1 shall be subject to
the prior written approval of Luther; provided, however that
Luther shall approve a sale of Parcel 1 which would result in
Luther receiving cash sale proceeds of not less than $1, 221, 880.
Notwithstanding the foregoing, in the event that the sale of
Parcel 1 would result in Luther receiving cash sale proceeds of
less than $1, 221,880. 00, Luther shall approve the sale if the
Agency provides evidence reasonably satisfactory to Luther that
the proposed sales price represents the fair market value of
Parcel 1.
In recognition of the fact that the cooperation of the
Agency and of the City with any proposed third party purchaser of
Parcel 1 will be necessary in order to obtain the highest
possible sales price for Parcel 1, the City and the Agency agree
to reasonably cooperate, where possible, and where consistent
with the objectives of the Ramon-Bogie Redevelopment Project,
with any said proposed third party purchaser of Parcel 1.
The Agency shall promptly inform Luther of any offers it has
received from prospective bona fide purchasers of Parcel 1 and
shall, upon request of Luther, deliver to Luther or his
representatives copies of all information received by Agency or
produced by or on behalf of Agency in connection with the
marketing and sale of Parcel 1, including, but not limited to
appraisals, market studies and analysis, contract offers and
inquiries and all other data related to or connected with the
marketing and sale of Parcel 1; provided, however that the Agency
shall not be required to provide Luther with any information of a
proprietary or confidential nature.
5. Deed of Trust to Luther. Upon the conveyance by Luther
to Agency of Parcel 1 in accordance with paragraph 1, Agency
shall execute and deliver to Luther a Deed of Trust in recordable
form securing Luther's interest in the proceeds of the sale of
Parcel 1 in accordance with paragraph 4 (c) above (the "Luther
Deed of Trust") .
6. Subdivision of Parcel 1. In order to facilitate the
sale of Parcel 1, the Agency shall have the right to subdivide
Parcel 1 and to sell, in one or more transactions, the subdivided
parts of Parcel 1. In the event of any subdivision of Parcel 1,
and the sale of the subdivided parts of Parcel 1 in one or more
transactions, the aggregate of the proceeds of such sales shall
be distributed in accordance with the terms of paragraph 4 above.
Any contract for the sale of any subdivided part of Parcel 1
shall be subject to the prior written approval of Luther which
approval shall not be unreasonably withheld or delayed so long as
Luther determines that the aggregate of the cash proceeds from
the sale of the subdivided parts of Parcel 1 will, in its
reasonable estimation, be sufficient to provide for payment to
Luther of not less than $1,221, 880 cash pursuant to paragraph 4
above and that the sale of the subdivided part of Parcel 1 to
which Luther's consent is then being requested will facilitate
the prompt sale of the then remaining unsold subdivided parts of
Parcel 1.
7. Luther. City or Agency Claims Against Epsteen. It is
understood that no party to this Agreement is waiving any rights,
claims, or causes of action which said party may have against
Peter Epsteen and/or Peter Epsteen, Pontiac - Buick - Rolls Royce
- British Imports, Inc. , Ltd. (the "Epsteen Parties") in
connection with any prior transaction relating to Parcel 1 and/or
Parcel 2, however, in the event that any party asserts any claims
or causes of action against any Epsteen Party and said Epsteen
Party brings a claim against any other party to this Agreement
for indemnification or contribution, the party to this Agreement
who asserted the claim or brought the cause of action against the
Epsteen Party shall hold harmless and indemnify the other party
to this Agreement against whom the Epsteen Party seeks
indemnification or contribution.
8 . Further Cooperation. The parties agree, each to the
other to execute and deliver all such other instruments and
documents as may be necessary and appropriate hereunder in order
to complete the transactions contemplated hereunder.
9. Governing Law. The laws of the State of California
shall govern the interpretation and enforcement of this
Agreement.
10. Attorneys' Fees and Costs. If any party commence an
action or legal proceeding under this Agreement, then the
prevailing party shall be entitled to recover and the other party
agrees to pay all fees and costs, including without limitation
reasonable attorneys' fees, as may be fixed by the court or jury.
11. Entire Agreement. This Agreement constitutes the
entire understanding and agreement of the parties with respect to
the subject matter expressly contained herein.
12 . Captions and Headings. The captions of the articles
and sections of this Agreement are for convenience and reference
only, and the words contained therein shall in no way be held to
explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first above written.
LUTHER-
The Luther Company Limited Partnership,
a Minnesota li it°ed partner-sh'p`
By ✓,, ti
Rudy Luther, Gen ral Partner
AGENCY:
Community Redevelopment Agency of
the Citx of Palm Spr ,n sue, California
Chairman
ATTEST
Secretary
CITY f
J
City of _Palm Springsr; ,California ff
Cam`' H'''����-"��, � �• r�%��u�
By
Mayor -
��,1 1
ATTEST: t-,-�77 '-�`
C'.ty i Clerk -
APP OVED AS TO FO
M ' i torney
-jCity bf Palm Springs, California
APPROVED BY COMMUNITY REDEVELOPMENT AGENCY
BY RESOLUTION NO. v���
APPROVED BY CITY COUNCIL BY RESOLUTION NO. / 7, 47
rdw746c
07/27/90