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Amendment#1 to Amendment k
Restated Dev Agr #111 , w/SENCA
Hdo,rtrs Htl ,Conv Cntr, CRA &
City PA 66- 0
AGR �1112(CRA)AGR #2167(City)
Res 369_ & _Res 15710,_ 11_6-85
AMENDMENT No. I TO AMENDMENT AND RESTATED
DEVELOPMENT AGREEMENT PALM SPRINGS
CONVENTION CENTER AND HOTEL
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In order to acquire the site in accordance with the timeframes described in the lease
options held by SENCA Palm Springs, Inc., the Agency agrees to loan to SENCA Palm
Springs, Inc. $3,364,000.00 for a period of time up to one year with interest accruing at a
rate of 12% per annum. For the period December 31, 1984 through June 30, 1985 interest
shall be computed on July 1, 1985 on an outstanding balance of $842,000.00. From July 1,
1985 until the term of the loan, interest shall be computed and compounded monthly at
the rate of 12% per annum based upon an outstanding balance of $2,777,400.00. Payment
of interest shall be deferred until the term of the loan, however there shall be no penalties
for prepayment. Proceeds from this loan shall be used to extinguish previously existing
leasehold interests in the site or portions of the site, payment of the first annual leasehold
payment on the site, and related administrative fees payable to the Bureau of Indian
Affairs related to the exercise of the option to lease. Payment under the loan shall
accrue until the earlier of one year or until such time as SENCA Palm Springs, Inc. has
secured the full letter of credit or other credit enhancement necessary to allow the
breaking of escrow for the proceeds of the sale of Certificates of Participation for the
proposed financing of the Project. The City or the Agency shall have the right, however,
to accelerate upon fifteen (15) days written notice sent by Certified Mail to SENCA Palm
Springs, Inc., the maturity date of this loan to July 1, 1985, if the City or Agency should
find SENCA Palm Springs, Inc.'s performance to be unsatisfactory at that time. Further
details regarding terms of this loan shall be evidenced by a promissory note executed by
SENCA Palm Springs, Inc. and drawn in favor of the Agency. Furthermore, SENCA Palm
Springs, Inc, agrees that the Agency shall be entitled to receive a sum equal to one
percent (1%) of any net profits, if and when received by SENCA Palm Springs, Inc., from
any sub-leasing or refinancing of the Phase II property occurring at any time.
COMMUNITY REDEVELOPMENT AGENCY SHALE ENERGY CORPORATION
CITY OF PALM SPRINGS, CALIFORNIA OF AMERICA
a
By By_
FRANK M. T, Chairman ROBERT H. SHELTON, President
ATTEST: g� If"
APPROVED BY THE CRA
By .//�an�r�.., ,,,,, BY Res. 369, 11-6-85
NORMAN R. KING, ecretary
CITY OF PAL SPRINGS, CALIFORNIA
� APPROVED BY THE CITY COUNCIL
By z BY Res 15710, 11-6-85.
City Manager
ATTEST%:
By I
City Clerk
Amendment No. 1 to Dev Agr #111
l w/SEP,CA,Hdgrtrs Hotel ,Conv Cntr
CRA & City, PA2B6-10
Resolution 301 AGR #111 (CRA)AGR #2167(City)
AMENDMENT NO. 1 TO DEVELOPMENT AGRE: Res 301 & Res 15383,12-31-84
PALM SPRINGS CONVENTION CENTER AND HOTEL
In order to acquire the site in accordance with the
timeframes described in the lease option held by SENCA Palm
Springs, Inc. , the Agency agrees to loan to SENCA Palm Springs ,
Inc. $3, 221, 350 for a period of time up to one year with interest
accruing at a rate of 12% per annum. Proceeds from this loan
shall be used to extinguish previously existing leasehold
interests in the site or portions of the site, payment of the
first annual leasehold payment on the site, and related
administrative fees payable to the Bureau of Indian Affairs
related to the exercise of the option to lease . Payment under
the loan shall accrue until the earlier of one year or until such
time as SENCA Palm Springs , Inc. has secured the full letter of
credit or other credit enhancement necessary to allow the
breaW ng of escrow for the proceeds of the sale of Certificates
of Participation for the proposed financing of the Project . The
City or the Agency shall have the right , however, to accelerate
upon fifteen (15 ) days written notice sent by Certified Mail to
SENCA Palm Springs, Inca the maturity date of this loan to July
1, 1985 if the City or Agency should find SENCA Palm Springs ,
Inc. ' s performance to be unsatisfactory at that time. Further
details regarding terms of this loan shall be evidenced by a
promissory note executed by SENCA Palm Springs , Inc. and drawn in
favor of the Agency. Futhermore, SENCA Palm Springs, Inc . agrees
that the Agency shall be entitled to received a sum equal to one
percent (1% ) of any net profits, if and when received by SENCA
Palm Springs , Inc. , from any sub-leasing or refinancing of the
Phase II property occurring at any time.
CITY OF PALM SPRINGS, CALIFORNIA Shale Energy--)Corporation
of Americ NCA)
By BY
Frank M. B rt , Mayor Robert H. Sheltbn, President
By
Norman R. King, City Manager
Senca (see book in vault)
• Development Agr Amended
AGREEMENT #111C
R320, 3-28-85
• • AMENDED AND RESTATED
DEVELOPMENT AGREEMENT
PALM SPRINGS CONVENTION CENTER AND HOTEL
This Amended and Restated Development Agreement ( the
"Agreement" ) is entered into as of December 31, 1984 by and among
the Community Redevelopment Agency of the City of Palm Springs
( "Agency" ) , Hotel and Convention Center Partners I , Ltd. a
California limited partnership ( "Developer" ) , the City of Palm
Springs, a municipal corporation ( "City" ) and Shale Energy
Corporation of America, a Texas corporation ( "SENCA" ) . The
parties hereto do hereby agree as follows:
I. SUBJECT OF AGREEMENT
(100 ) Purpose of the Agreement
The purpose of this Agreement is to effectuate the
Redevelopment Plan for the Palm Springs Tahquit2-Andreas
District Redevelopment Project of the Agency ( "Redevelopment
Plan" ) by making provision for the acquisition of land and
the financing and construction of a Convention Center and
Headquarters Hotel ( "the Project" ) near the Palm Springs
• • central business district .
The development of the Project pursuant to this Agreement is
in the public interest of the City and the Agency, will be of
benefit to the Agency ' s Redevelopment Project area, will
promote the health, safety, and welfare of the residents of
• the community, will eliminate blighted conditions within the
Redevelopment Project Area, and will be in accord with the
public purposes and provisions of applicable federal, state
and local laws and requirements .
( 101) The Redevelopment Plan
•
This Agreement is subject to the provisions of the
Redevelopment Plan which was approved and adopted on July 19 ,
1983 , by the City Council of the City of Palm Springs, by
Ordinance No. 1187 . The Redevelopment Plan as it now exists ,
and as it may be subsequently amended, is incorporated herein
• by reference and made a part hereof as though fully set forth
herein.
Any amendments to the Redevelopment Plan which change the
uses or development permitted on the Site or otherwise change
• the restrictions or controls which apply to the Site, shall
require the written consent of the Developer in Phase I and
SENCA in Phase II as such phases are defined in Section
• 103 . Amendments to the Redevelopment Plan applying to the
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r
other property in the Project Area shall not require the
consent of the Developer or SENCA.
(102) The Project Area
The Project Area is all of the real property described as
being included within the Redevelopment Plan referred to
above. ,
( 103) The Site
The "Site" of the Phase I portion of the development,
including the Headquarters Hotel and Convention Center
consists of Blocks 107, 108 , 109 , 110 , 112, 113 and 114 of
Section 14, Township 4 South, Range 4 East-San Bernardino
Base and Meridian; the "Site" for the proposed cultural
center consists of Blocks 7, 8 and ill of Section 14,
Township 4 South, Range 4 East-San Bernardino Base and
f Meridian, and the "Site" for the Phase II portion of the
development, including a second hotel and overflow parking
for the headquarters hotel and Convention Center , consists of
blocks 217 , 218 and 232 of Section 14, Township 4 South,
Range 4 East - San Bernardino Base and Meridian.
( 104) Parties of the Agreement
A. The Agency
The Agency is a public body, corporate and politic,
duly created, established and authorized to transact
business and exercise its powers, all under and
pursuant to the Community Redevelopment Law (Part 1
of Division 24 , commencing with Section 33000 ) of
the Health and Safety Code of the State of
California.
The principal office of the agency and City is 3200
East Tahquitz-McCallum Way, Palm Springs , California
92252.
B. The Developer
The Developer is Hotel and Convention Center
Partners I , Ltd. , a California limited partnership,
the general partner of which is SENCA Investors ,
Inc. , a California corporation with offices at 650
South Cherry Street - Suite 840 , Denver, Colorado
80222 .
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•
• • The qualifications and identities of the developer
are of particular concern to the Agency. It is
because of these qualifications and identities that
the Agency has entered into this Agreement with
Developer. No voluntary or involuntary successor in
interest of Developer shall acquire any rights or
• powers under this Agreement except as expressly set
forth herein. It is contemplated that developer
shall be one of eleven similar limited partnerships ,
each of which will construct a portion of the
Headquarters Hotel. As the context requires , where
reference herein is made to the Convention Center by
• itself, Developer shall mean SENCA or a partnership
in which SENCA is a partner .
Prior to the issuance of a certificate or
certificates of completion for the Site by the
Agency and the issuance by the City of a Certificate
• of Occupancy as hereinafter provided, Developer
shall not assign all or any part of its interest in
this Agreement , unless otherwise provided herein,
without the prior written approval of the Agency
except for the purpose of obtaining financing
directly related to the construction of the
• improvements contemplated herein, which may include
pledging its interest in this Agreement to secure
such financing, if required. No permitted assignment
will release Developer from its obligations
hereunder without prior written approval by Agency.
• C. The City
The City of Palm Springs is a municipal
corporation created pursuant to the general laws
of the State of California.
• II . ACQUISITION OF THE SITE
( 200 ) Site to be Acquired by SENCA
. SENCA presently has available to its options to ground lease
• the Site from certain allottees of the Agua Caliente Band of
Cahuilla Indians . The Site consists of approximately 19 . 7
acres, located at the northwest corner of the intersection of
Tahquitz-McCallum Way and Avenida Caballeros .
The aforementioned allottees gave an option dated February
• 28, 1984 ( referred to as the "Master Lease" ) to Shale Energy
Corporation of America, a Texas corporation ( hereinafter
• "SENCA" ) . The option contains a form of lease which SENCA
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•
• Palm Springs, Inc. , a California Corporation, and a wholly
owned subsidiary of SENCA, will execute as the assignee of
SENCA. SENCA Palm Springs, Inc. will then sublease to the
City of Palm Springs that portion of the Site relating to the
Convention Center and to the Agency that portion of the Site
relating to the Headquarters Hotel . The Agency, with respect
• to its portion of the Site, will sub-sublease to Developer
and the othe; ten developers pursuant to separate and
independent sub-subleases, an interest in the Site.
It is understood that the Site is presently burdened by
certain existing leases between the allottees and other
• parties. Developer is obligated by the terms of the option to
cause those leasehold interest to be extinguished. The
Agency agrees to use its best efforts to acquire said
interests by the exercise of its powers of eminent domain if
necessary.
• If, by mutual agreement of the Developer and the Agency,
eminent domain proceedings are required, Developer agrees to
advance to Agency, upon demand by Agency, the cost of said
acquisitions including court costs, attorney ' s fees, and
compensation required to be paid to property owners with
• • respect to that portion of the Site which will be part of t`e
Headquarters Hotel . Agency will assume the cost of
acquisition with respect to the acquisition of leasehold
interests affecting that portion of the Site utilized by the
Convention Center and additional property to be acquired in
fee simple.
• III. DEVELOPMENT OF THE SITE
( 300 ) Development of the Site by the Developer
A. Preliminary Recitals
•
City and Agency invited proposals from qualified
developers for the development of a Convention
Center and Headquarters Hotel . City and Agency
have selected SENCA, an affiliate of the General
Partner , as the master developer of the Project
♦ after carefully reviewing all proposals because
of the quality of the proposal for development
submitted by SENCA, the quality of SENCA' s
development team ( described in Exhibit "A"
attached hereto and herein after referred to
collectively as SENCA) , the financial
• capabilities of SENCA and SENCA' s experience and
qualifications for carrying out a project of
this scope . Upon selection of SENCA, Agency and
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• • SENCA entered into a "Cooperation Agreement , " a
copy of which is attached to this Agreement as
Exhibit "B" and incorporated herein by this
reference and made a part hereof.
Subsequently, SENCA submitted an architectural
concept for the development of the Site, a copy
,of which is attached to this Agreement as
Exhibit "C" and incorporated herein by this
reference and made a part hereof .
Thereafter, SENCA, Agency and City agreed that
the actual developer would be the Developer
described in the first paragraph of this
Agreement. Such agreement is formalized by the
provisions of this Agreement .
• It is the intent of the parties to this
agreement that the financing of the Convention
Center and the Hotel will be provided through
tax exempt financings. The availability of this
financing is a condition precedent to commencing
the construction of the project. If, for any
reason, said financing is not available, each
party shall bear the costs advanced by said
party in connection with the efforts to obtain
such financing.
(301) Construction of Convention Center
•
It is the intent of the parties that the master developer,
will produce plans, specifications and working drawings in
accordance with the approved concept, for the Convention
Center development subsequent to the execution of this
Agreement and the obtaining of financing for the Convention
• Center and Hotel; such plans , specifications and working
drawings shall be consistent with the architectural concept
and project description (Exhibits "C" and "D" ) , and with a
document entitled Scope of Work (Exhibit E) for Palm Springs
Convention Center , incorporated herein by reference. Said
plans, specifications and working drawings shall be subject
to review and approval by City and Agency , which approval
shall not be unreasonably withheld, provided said plans ,
specifications and working drawings reasonably conform to the
project description and architectural concept . It is the
intent of this Agreement to set forth as precisely as pos-
sible at this time, the rights , duties and obligations of the
parties so that they may proceed to seek and finalize appro-
priate financing for the Project and prepare and finalize
appropriate plans and specifications for the Project .
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•
• ( 302) Construction of the Hotel
•
It shall be the responsibility of the Developer to develop
plans and specifications for the balance of the Phase I
Project, including the Hotel, subject to approval by City and
Agency of said plans and specifications which approval shall
not by unreasonably withheld. The Developer shall cause the
• project to bQ constructed in accordance with plans and
specifications and in accordance with the "Schedule of
Performance" attached to this Agreement as Exhibit "F" and
incorporated herein by this reference and made a part hereof.
• (303) Construction of Center
The City will cause the Convention Center to be built
pursuant to a turnkey construction agreement between the City
and SENCA.
• Developer and Agency and City agree that SENCA or an
affiliate of SENCA or a partnership in which SENCA or such
affiliate is a partner will be used by Developer for the
purpose of constructing the Hotel and by City for the purpose
of constructing the Convention Center.
• ( 304) Cost of Project
Developer agrees to construct its portion of the Headquarters
Hotel to be operated by a hotel management company acceptable
to the City. The cost of the portion of the Hotel to be
owned by Developer shall be the full responsibility of the
Developer, and said cost shall only be limited by provisions
in the Financing Documents relating to the tax exempt
financing for the Hotel, which financing, the parties hereto
hereby agree, is necessary for the construction of the
Project .
• City and Agency are responsible for the cost of construction
of the Convention Center and the parties agree that said
costs shall be financed by certificates of participation or
other tax exempt instruments . The parties agree that the
cost of construction of the Convention Center shall not
exceed the amount set forth in this agreement as the maximum
• cost for construction of the Convention Center . The parties
agree that the guarantee by SENCA to construct the Convention
Center at a cost not to exceed said amount is essential to
the obtaining by City and Agency of tax exempt financing and
letters of credit to secure said financing for the Project .
• The parties hereto agree that the Project consists of two
• interdependent facilities , the Headquarters Hotel and a
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•
♦
♦ • Convention Center. These facilities will share common walls
and common mechanical facilities . The financing of the
Convention Center is entirely dependent upon the availability
of similar tax exempt financing for the Hotel. It will not
be possible to finance one facility and construct it without
financing and constructing the other . The ability to utilize
y tax exempt financing, as therefore necessarily contemplated
for the Hotel expires on December 31, 1984; and hence time is
of the essence to conclude financing if this project is to be
constructed. The credit and the financial commitments of the
developer and a group of Letter of Credit issuing
institutions are essential elements in obtaining the
financing for the Hotel and the Convention Center and the
existence of a Guaranteed Maximum Price Construction Contract
for each facility that is satisfactory to these institutions
is integral to their consent to issue such credit enhance-
ment . The two facilities are planned to be constructed at
the same time and to open for business concurrently. The
economic viability of each is dependent upon the economic
success of the other. Kitchen facilities of the Hotel are
expressly made available to the Convention Center for events
conducted there, and parking facilities for the two facil-
ities will be shared. It was for the foregoing reasons, and
` • others, that the Agency accepted the proposal for the
development of the combined facilities which it received from
SENCA, pursuant to which this Agreement was ultimately
negotiated. An integral part of the SENCA proposal was that
SENCA as master developer , agreed to provide the Letter of
Credit Banks with a maximum price for the construction of the
Convention Center . The parties further acknowledge and agree
that this maximum price bid from SENCA for the construction
of Convention Center was an essential element in the ability
of the Agency to secure Letter of Credit Commitments and
consequently be able to sell bonds for the construction of
the Convention Center. Consequently, the parties acknowledge
♦ and agree that neither the Convention Center portion nor the
Headquarters Hotel portion of the Project could proceed
without all of the commitments and undertakings set forth in
this Agreement, including the agreement that SENCA will cause
to be constructed the Convention Center facility. If deemed
necessary by Special Counsel, Agency agrees to seek judicial
♦ validation of this Agreement with respect to its ability to
enter into a maximum price construction contract without
competitive bidding of the contract itself .
SENCA hereby covenants and agrees that it will cause to be
constructed the Convention Center as described above an in
• accordance with the Scope of Work document ( Exhibit E)
• incorporated herein by reference for a maximum price of
$18, 805 , 000 , which shall consist of the total construction
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cost, including contractor ' s fee and contingencies; archi-
tectural and engineering fees; furniture; fixtures and
equipment; landscaping and sitework; real estate taxes;
insurance; the master developer ' s fees; other professional
fees; miscellaneous costs ; and contingencies.
Agency and City shall have the right to review and approve
all subcontracts entered into by SENCA to determine if the
subcontractor is capable of performing the work, if the
subcontracts meet legal requirements for public works
contracts and subcontracts and to determine if bid prices are
! commensurate with prevailing market rates for the services
being bid. Such approval may not be unreasonably withheld.
The contract with SENCA and the subcontracts shall all comply
with applicable requirements of the Government Code, the
Health and Safety Code and the Public Contracts Code of the
! State of California applicable to public works constructed by
City or Agency.
The contract for construction of the Convention Center shall
provide that the general contractor ' s fee will be calculated
at the time of financing at 3 . 5% of projected hard costs, not
` including the "contingency" line item. Should the
construction ultimately be completed for less than the
contract amount, including contingency, any realized savingr,
shall be spent according to a predetermined formula between
the city and the contractor as an incentive to the contractor
to minimize ultimate construction costs . It is understood,
! however, that the contractor shall not realize a savings by
his failure to meet the plans and specifications approved by
the City for the Convention Center.
SENCA, City and Agency may increase or decrease the scope of
work and increase or decrease the maximum price referred to
! herein by mutual agreement. City or Agency may require SENCA
to cause additional facilities to be constructed in excess of
the scope of work for which SENCA may make additional
charges , as in the case of change orders, reflecting the cost
of such additional work and a reasonable .profit thereon .
! ( 305 ) Financing of Project
The obtaining of adequate financing for both the Convention
Center and Hotel portions of the Project by way of tax exempt
financing is a condition precedent to the construction of the
entire Project, and such financing must be closed con-
! currently Ear the Hotel and the Convention Center on or
before December 31 , 1984 . Construction of either facility
shall begin only when proof of financing exists for the cost
of construction of both facilities . Commitments for
•
i
financing the Hotel shall be in such form and content as is
p acceptable to the City and Agency as reasonably evidencing
firm and enforceable commitments for such financing .
Commitments for financing the construction of the Convention
Center shall similarly be in such form and content as is
• acceptable to Developer as reasonably evidencing firm and
enforceable commitments for such financing .
The debt service on certificates of participation or other
tax exempt instruments sold by the City or Agency to finance
the cost of construction of the Convention Center shall be
i paid for by City and Agency. To that end, City will annually
appropriate out of available funds of the City specified in
this paragraph, and additional funds pledged by Agency, as
more particularly described below, an amount sufficient to
meet the annual debt service on said obligations. In no
event, however, shall City be required to pay toward debt
i service in any year, an amount in excess of the amount
received by City from sales tax generated from businesses
conducted on the Site; the transient occupancy tax receipts
from hotel rooms constructed on the Site; the two percent
transient occupancy tax increase assessed commencing
• September 1, 1984 upon all hotels in the City of Palm
Springs, property tax increments generated by the
Headquarters Hotel and available to the Agency, and such
other lawfully available funds, if any, that the City may
from time to time designate. To the extent that those
combined sources of revenue do not, for any reason, produce
• sufficient revenue in any year to meet the annual debt
service for that year, the City shall be obligated only to
appropriate toward the debt service an amount equal to the
total revenues received from those sources .
The "Tax Increment Revenue" pledged by the Agency to the City
• shall be that amount of tax increment revenue received by
Agency annually from the property taxes derived from the
Hotel-Convention Center Project, but not more than the amount
necessary to meet the annual debt service on the Convention
Center .
• Details of the financing plan, to which the parties hereto
agree to be bound, including sources of revenue, financial
commitments of the parties hereto, equity participation by
the parties , default and enforcement provisions, and
provision for operating shortfalls of the. Project are all set
forth in the Official Statement for the Tax Exempt Issues ,
i the Private Placement Memorandum for the equity interests ,
• and the Financing Documents referred to therein, which, by
this reference, are made a part of this Agreement .
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•
• • ( 306 ) Insurance Provisions
Developer agrees for the entire period of this agreement, to
indemnify, defend and save City and its agents and employees
harmless from any and all liability, claims, damages or
injuries to any person, including injury to Developer ' s
• employees and all claims which arise from or are connected
with the negligent performance of or failure to perform the
work or other obligations of this Agreement, or are caused or
claimed to be caused by the negligent acts of the Developer ,
his agents or employees, and all expenses of investigating
• the defending against same.
Liability Insurance - During the entire term of this
Agreement, Developer agrees at his sole expense to procure
and maintain public liability insurance to protect against
loss from liability imposed by law for damages on account of
bodily injury, including death therefrom, suffered or alleged
to be suffered by any person or persons whomsoever, resulting
directly or indirectly from any act or activities of the
Developer, his agents , servants, suppliers, guests, or
business visitors, or any person acting for the developer or
under his control or direction, and also to protect against
• loss from liability imposed by law for damages to any
property of any person caused directly or indirectly by or
from acts or activities of Developer , or his agent , servants,
suppliers, guests , or business visitors , or any person acting
for the Developer, or under his direction or control .
Minimum limits of five-million dollars ( $5 , 000 ,000 ) , combined
• single limit for bodily injury and property damage shall be
maintained in full force and in effect throughout the term of
this Agreement and any extension thereof .
All of such insurance shall be primary insurance and shall
name the City of Palm Springs and the Community Redevelopment
• Agency of the City of Palm Springs as additional insured.
Developer agrees that provisions of this paragraph, as to
maintenance of insurance, shall not be construed as limiting
in any way the extent to which the Developer may be held
responsible for the payment of damages to persons or property
• resulting from the Developer ' s activities, the activities of
his agents , servants , suppliers, guests, or business
visitors, or the activities of any person or persons for
which the Developer is otherwise responsible .
Developer agrees to maintain or cause to be maintained the
• following insurance against risk of physical damage to
• Project structures and other risks for the protection of the
City and the Agency:
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•
• • Fire, Lightning, and Extended Coverage, Vandalism and
Malicious Mischief - Extended coverage shall include loss or
damage by explosion, windstorm, riot, aircraft, vehicle
damage, smoke and other hazards thus normally covered.
Coverage shall be equal to the full insurable value of the
Projects as such value is determined by independent appraisal
• not less than every 36 months . Such insurance may be carried
in conjunctipn with any other fire and extended coverage
insurance carried or required to be carried by the Letter of
Credit Institutions or Certificate Holders.
Earthquake - Coverage in an amount equal to 100% of the full
• replacement value subject to a ten percent ( 10%) deductible
against loss or damage to the Project resulting from an
earthquake.
Workers Compensation Insurance - Such amounts as may be
required under the Worker ' s Compensation Insurance and Safety
• Act or such other California law to cover all persons
employed in connection with the Project.
Flood Insurance - Coverage in an amount equal to 100% of the
full replacement value subject to a ten percent ( 10%)
• deductible against loss or damage to the Project resulting
from a flood.
Business Interruption Insurance - Payable to the City and the
Agency in an amount equal to the anticipated annual debt
service and operating shortfall on the Convention Center .
• Such coverage amounts shall be reviewed and adjusted
annually.
Builder ' s Risk Insurance - Developer shall purchase and
maintain property insurance upon the entire work at the site
to the full insurable value thereof during the period of
construction. This insurance shall include the interests of
the Developer , the City, the Agency, the Contractor,
subcontractors, and sub-subcontractors , in the work and shall
insure against the perils of Fire, Extended Coverage,
Vandalism and Malicious Mischief .
• Evidence of Insurance - A Certificate of Insurance or an
appropriate insurance binder, evidencing the above insurance
coverage with a company acceptable to the City and the
Agency, shall be submitted to the City and the Agency upon
execution of this Agreement and completion of project
financing.
•
Notice to City, Insurance Coverage Change - The terms of the
insurance policy or policies issued to provide the above
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• insurance coverage shall provide that said insurance may not
be amended or cancelled by the carrier , for non-payment of
premiums or otherwise, without thirty ( 30) days ' prior
written notice of any such amendment or cancellation. in
such event, the developer shall, prior to the cancellation
date, submit to the City Clerk and Agency Secretary new
evidence of insurance in the amounts heretofore established.
The Developer - An Independent Contractor - It is understood
and agreed that the Developer is, and at all times shall be,
an independent contractor, and that SENCA is , and at all
times shall be, an independent contractor and nothing
contained herein shall be construed as making the Developer
or SENCA, or any individual whose compensation for services
is paid by the Developer or SENCA, an agent or employee of
the City or the Agency; additionally, nothing contained
herein shall be construed as authorizing the Developer or
SENCA to create or assume any obligation or liability for or
on behalf of the City or the Agency. The Developer and SENCA
shall provide at the outset of construction a "Notice of
Nonresponsibility" which indicates that the City or the
Agency cannot be responsible for obligations or liabilities
incurred by the Developer or SENCA.
• • Limitation - Notwithstanding anything to the contrary
contained in this Agreement, the Developer ' s obligation to
procure insurance hereunder shall be limited to such coverage
as can be obtained at reasonable rates as revised by the City
and approved. In the event of a dispute hereunder, the
0 matter shall be submitted to arbitration.
( 307 ) Performance Bond
Agency and City agree to require SENCA to provide a
Performance Bond to guarantee completion of the Convention
i Center and a Labor and Material Bond with respect to said
Project, all in an amount equal to the estimated cost of
construction of the facility, naming City, Agency, and
Developer as additional insureds, and Agency will provide
Developer with duplicate originals or appropriate
certificates evidencing such Bond. Said Bond may be provided
by SENCA by obtaining same from the General Contractor
responsible for construction of the improvements .
The Developer shall furnish or cause to be furnished to the
Agency duplicate originals or appropriate certificates
evidencing a Performance Bond from Developer or from the
general contractor employed by Developer , for the construc-
tion of the Hotel in an amount equal to the estimated cost of
construction of said facility, and evidencing a Labor and
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Material Bond in a similar amount, guaranteeing construction
of the Hotel and naming the City and Agency as additionally
insured. It is the intent of this provision that City and
Agency shall receive evidence of a single Performance Bond
and Labor and Material Bond with respect to the construction
• of the entire Hotel which will be provided to it from all of
the eleven developers collectively.
( 308) City and Governmental Agency Permits
Before commencement of construction or development of any
• building, structures , or other work or improvement upon the
Site, the Developer with respect to the Hotel, and SENCA with
respect to the Convention Center shall at its own expense
secure or cause to be secured any and all permits which may
be required by the City or any other governmental agency
affected by such construction, development or work . The
• Agency shall provide all proper assistance to the Developer
in securing these permits.
( 309) Rights of Access
• Representatives of the Agency and the City shall have the
reasonable right of access to the Site without charges or
fees , at normal construction hours during the period of
construction for purposes of this Agreement, including buz
not limited to the inspection of the work being performed in
construction of the improvements . Such representatives of
• the Agency or the City shall be those who are so identified
in writing by the Executive Director of the Agency or the
City Manager .
( 310 ) Local , State and Federal Laws
• Developer shall carry out the construction of its
improvements in conformity with all applicable laws,
including all applicable federal and state labor standards .
( 311) Antidiscrimination During Construction
• The Developer for itself and its successors and assigns ,
agrees that in the construction of its improvements provided
for in this Agreement , the Developer will not discriminate
against any employee or applicant for employment because of
race, color , religion, sex or national origin.
•
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•
• • (312) Certificate of Completion and Certificate of
Occupancy
Promptly after completion of all construction and development
to be accomplished by the Developer upon the Site, or any
• portion thereof, the Agency shall furnish the Developer with
a Certificate of Completion upon written request by the
Developer, and the City shall furnish the Developer with a
Certificate of Occupancy. Agency and City shall not
unreasonably withhold any such Certificates . A Certificate
of Completion shall be, and shall so state, conclusive
• determination of satisfactory completion required by this
Agreement upon the Site, and full compliance with the terms
hereof with respect to the Site. Such certificates may also
be obtained by Developer for portions of the improvements
upon the Site as they are properly completed and ready for
use, if Developer is not in default under this Agreement.
• After issuance of such Certificates, any party then owning or
thereafter purchasing, leasing or otherwise acquiring any
interest therein shall not (because of such ownership,
purchase, lease or acquisition) , incur any obligation or
liability under this Agreement, except that such party shall
be bound by any covenants contained in the deed, lease,
• mortgage, deed of trust, contract or other instrument of
transfer in accordance with the provisions of Sections 401
and 402 of this Agreement . Neither the Agency nor any other
person, after issuance of such certificates, shall have any
rights, remedies or controls that it would otherwise have or
be entitled to exercise under this Agreement as a result of a
• default in or breach of any provision of this Agreement.
A Certificate of Completion of construction for the entire
improvement and development of the Site shall be in such form
as to permit it to be recorded in the Recorder ' s Office of
Riverside County. Certificates of completion of construction
for less than the complete improvement and development of the
Site shall not be recorded.
If such Certificates of Completion and/or occupancy are not
furnished with respect to any portion of the Project after
• written request from the Developer , the appropriate public
agency shall, within ten ( 10 ) days of the written request ,
provide the Developer with a written statement of the reasons
for refusal or failure to furnish such Certificate or
Certificates . The statement shall also contain a statement of
the action which Developer must take to obtain the Certif-
• icate . If refusal by the Agency is confined to the immediate
availability of specific items of materials for landscaping
or fine arts , the Agency will issue its Certificate upon the
posting of a bond by the Developer with the Agency in the
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•
• • amount representing a fair value of the work not yet
completed. If the Agency shall have failed to provide such
written statement within said 10-day period, the Developer
shall be deemed entitled to the Certificate of Completion.
Such Certificates shall not constitute evidence of compliance
• with or satisfaction of any obligation of the Developer to
any holder of a mortgage, or any insurer of a mortgage
securing money loaned to finance the improvements, or any
part thereof. Such Certificates shall not constitute notice
of completion as referred to in the California Civil Code,
Section 3093 .
•
IV. USE OF THE SITE
( 400 ) Uses
• The City with respect to the Convention Center and the
Developer with respect to the Hotel covenants and agrees for
itself, its successors, its assigns and every successor in
interest that during construction and thereafter, such
successors and such assignees shall devote the Site to the
uses specified in the Redevelopment Plan, the ground lease
• and all relevant subleases, and this Agreement .
(401) Obligation to Refrain from Discrimination
There shall be no discrimination or segregation of any
person, or group of persons, on account of sex, race, color ,
• creed, religion, marital status, national origin or ancestry
in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the Site, nor shall the Developer
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 Site.
( 402 ) Form of Nondiscrimination and Nonsegregation Clauses
The Developer shall refrain from restricting the rental, sale
• or lease of the Site on the basis of sex, race, color , creed ,
ancestry or national origin of any person. All such deeds ,
leases, or contracts shall contain or be subject to
substantially the following nondiscrimination or nonsegre-
gation clauses:
• 1 . In deeds : "The Grantee herein covenants by and for
• himself , his heirs , executors , administrators and
assigns, and all persons claiming under or through
15 -
•
• them, that there shall be no discrimination against ,
or segregation of, any person or group of persons on
account of sex, race, color, creed, religion,
marital status, national origin or ancestry in the
sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the land herein conveyed, nor
• shall the grantee 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 in the
• land herein conveyed. The foregoing covenants shall
run with the land. "
2 . In leases: "The lessee herein covenants by and for
himself, his heirs, executors, administrators and
• assigns, and all persons claiming under or through
him, 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, race, color , creed, religion,
marital status, national origin or ancestry, in the
leasing, subleasing, transferring, use or enjoyment
of the land herein leased nor shall the lessee
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, sublessees,
subtenants , 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, race, color, creed,
religion, marital status, national origin or
ancestry, 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, sublessees , subtenants , or vendees of the
land. "
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•
• • ( 403 ) Effect and Duration of Covenants
Except as otherwise provided, the covenants contained in this
Agreement and the deeds shall remain in effect during the
life of the Ground Lease referred to above. The covenants
against discrimination, however, shall remain in effect in
• perpetuity.
V. DEFAULTS, REMEDIES AND TERMINATION
( 500) Defaults - General
• Subject to the extensions of time set forth in Section 603,
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
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.
The injured party shall give written notice of default to the
party in default , specifying the default complained of by the
injured party. Except as required to protect against further
damages, and except as otherwise expressly provided in
Sections 505 and 506 of this Agreement, the injured party may
not institute proceedings against the party in default until
30 days after giving such notice. Failure or delay in giving
such notice shall not constitute a waiver of any default, nor
• shall it change the time of default .
Except as otherwise expressly provided in this Agreement, any
failure or delay by either party in asserting any of its
rights or remedies as to any default shall not operate as a
waiver of any default or of any such rights or remedies or
• deprive either such 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.
( 501 ) Institution of 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 .
Such legal actions must be instituted in the Superior Court
• of the County of Riverside, State of California, in an appro-
priate Municipal Court in that County, or in the appropriate
Federal District Court servicing Riverside County.
17
0
•
'• • ( 502) Applicable Law
The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
• ( 503 ) Acceptance of Service of Process
In the event, that any legal action is commenced by the
Developer against the City or the Agency, service of process
upon the Agency shall be made by personal service upon the
Chairman or Secretary of the Agency and service of process
• upon the City shall be made by personal service upon the City
Clerk, or in such other manner as may be provided by law.
In the event that any legal action is commenced by the City
or the Agency against the Developer, service of process on
the Developer shall be made by personal service upon the
General Partner of the Developer or the designated agent for
service of process, or in such other manner as may be
provided by law, whether made within or without the State of
California.
( 504 ) Rights and Remedies are Cumulative
• Except as otherwise expressly stated in the 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
time or different times , of any other rights or remedies for
the same default or any other default by the other party.
( 505) Damages
If either the Developer or the City or Agency defaults with
regard to any of the provisions of this Agreement, the
• nondefaulting party or parties shall serve written notice of
such default upon the defaulting party. If the default is
not cured or commenced to be cured by the defaulting party
within thirty ( 30 ) days after service of the notice of
default, or if , after commencing to cure the default, the
defaulting party fails to prosecute the work diligently, the
• defaulting party shall be liable to the other party for any
damages caused by such default.
( 506) Specific Performance
If either the Developer or the City or Agency defaults under
• any of the provisions of this Agreement , the nondefaulting
party shall serve written notice of such default upon the
defaulting party. If the default is not commenced to be
• - 18 -
•
• • cured by the defaulting party within thirty (30 ) days of
service of the notice of default, or if, after commencing to
cure the default , the defaulting party fails to prosecute the
work diligently, the nondefaulting party at its option may
institute an action for specific performance of the terms of
• this Agreement.
( 507 ) Other Events of Default
It is contemplated that the parties hereto will enter into
other agreements relative to the financing of the project and
the management of the Convention Center . Any provisions or
remedies relative to default under such agreements shall be
governed by the terms and conditions of those specific
agreements, and any remedies provided therein shall be in
addition to rights and remedies provided for herein.
• VI . GENERAL PROVISIONS
( 600 ) Notices, Demands , and Communications Between the
Parties
Formal notices , demands, and communications between the City
• • and Agency and the Developer shall be sufficiently given if
dispatched by registered or certified mail , postage prepaid,
return receipt requested, to the principal offices of the
City and Agency and the Developer , and one additional
representative of the Developer to be designated by the
Developer in writing. Such written notices, demands and
• communications may be sent in the same manner to such other
addresses as either party may from time-to-time designate by
mail as provided in this Section.
( 601) Conflict of Interest
The Developer warrants that it has not paid nor given, and
will not pay nor give, any third person any money or other
consideration for obtaining this Agreement .
( 602 ) Nonliability of Agency Officials and Employees
• No member , official or employee of the City or Agency shall
be personally liable to the Developer , or any successor in
interest , in the event of any default or breach by the City
or Agency or for any amount which may become due to the
Developer or successor or on any obligations under the terms
• of this Agreement .
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•
• • ( 603 ) Enforced Delay: Extension of Times of Performance
In addition to 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; riots ; floods; earthquakes ;
fires ; casualties; acts of God; acts of the public enemy;
epidemics; quarantine restrictions ; freight embargoes; lack
of transportation; governmental restrictions or priority;
litigation; unusually severe weather ; inability to secure
necessary labor, materials or tools; delays of subcontractor
• or supplier ; acts of the other party; acts or failure to act
of any public or governmental agency or entity (except that
act of the Agency or the City, or failure of the Agency or
the City to act , shall not excuse performance by the Agency
or the City) 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
only be for the period of the enforced delay, which period
shall commence to run from the time of the commencement of
the cause . If, however , notice by the party claiming such
extension is sent to the other party more than 30 days after
the commencement of the cause, the period shall commence to
• run only thirty ( 30 ) days prior to the giving of such
notice. Times of performance under this Agreement may also
be extended by mutual agreement in writing by the City and
the Developer or Agency and the Developer .
• ( 604) Approval by the Agency
Whenever this Agreement requires the City or Agency to
approve any contract, document , plan, specification, drawing
or other matter, such approval shall not be unreasonably
withheld.
• VII . OPERATION OF FACILITIES
( 700 ) The parties contemplate that the Convention Center
is being developed for the primary purpose of attracting
conferences and conventions to the City which will maximize
• economic benefit . This primary purpose should be reflected in
the booking and pricing policies established for the
Convention Center . These established Policies shall be
frequently reviewed for the purpose of maintaining the
Convention Center ' s competitive position with respect to
similar or comparable facilities .
•
• ( 701 ) It is agreed that the Convention Center shall be
operated and maintained as a "first class" facility. It is
• - 20 -
J
• • further agreed that all landscaped areas associated with the
Convention Center shall be maintained in a "first class"
manner . The operator of the facility shall assure this
quality of operation and maintenance, and City shall take all
reasonable steps to enforce any such provision. For the
purpose of this document, "first class" shall mean that the
r original improvements shall be of a high quality as measured
by industry standards at the time of construction, and shall
be maintained in a physical state of repair which will
preserve the high quality of the original improvements .
(702) Developer agrees that the Headquarters Hotel shall
41 be operated and maintained as a "first class" facility.
Lodging accommodations in the Headquarters Hotel will be
available on a twenty-four hour per day basis, twelve months
per year. Developer further agrees to maintain at all times ,
all landscaped areas associated with the Hotel in a "first
class" manner in accordance with the property maintenance
standards required by the ordinances of the City of Palm
Springs , and in accordance with industry standards for a
first class facility.
( 703 ) It is expressly understood that the Headquarters
Hotel shall receive no exclusive rights to, nor preference in
the use of, the Convention Center facilities . All rules and
regulations governing the use and operation of the Convention
Center shall be subject to approval or veto by the City
Council or its authorized representatives , and the selection
of the operator of the Convention Center, or any change in
such operator, shall be subject to the approval or veto of
the City Council or its authorized representatives. The City
Council shall also have the right to review the Operating
Budget of the Convention Center, and such Budget shall be
subject to the approval or veto of the City Council or its
authorized representatives. All such approvals shall not be
• unreasonably withheld. If the City Council or its authorized
representatives fail to approve the budget by the commence-
ment of the City ' s fiscal year, then the preceding year ' s
budget shall remain in effect until the parties can agree
upon an appropriate adjustment to the budget . The City may
audit the books of the operator of the Convention Center at
• reasonable times upon reasonable notice relative to
establishment of the operational subsidy.
( 704 ) In connection with the operation of the Convention
Center , the Convention Center operators shall have the right
. to enter into contracts for serving food or beverages within
the Convention Center . Such contracts will be arrived at
•
. - 21 -
•
• • based upon an open competitive bidding system which allows
any qualified hotel or licensed catering service the right to
bid for the contract . The Convention Center operator will ,
for and through such bidding process, establish minimum
qualifications for catering services in the Convention
Center, and will also establish policies for the service of
• alcoholic beverages in the Convention Center . Such policy
shall apply µniformly to all hotels or catering services
operating in the Convention Center. The City shall have the
right to approve or reject any such policies and contracts
for cause, but may not unreasonably withhold any such
approval or unreasonably exercise any such right of
• rejection.
( 705 ) Developer agrees not to discriminate against the
City, other hotels and/or local groups in making available
for scheduling the Headquarters Hotel banquet facilities,
catering facilities and staff to service banquets for groups
• or conventions which are booked into the Convention Center by
the City or the manager of the Convention Center facility,
other hotels and/or local groups planning such functions. It
is understood that meal functions which occur in the
Headquarters Hotel shall be serviced by the Headquarters
Hotel staff and governed by the normal scheduling and pricing
• policies of the Headquarters Hotel operator .
( 706) The City or the manager of the Convention Center
facility shall have the right to levy a reasonable surcharge
on gross sales, excluding taxes, of food and beverages served
in the Convention Center to groups using the Convention
• Center. Such surcharge shall be levied uniformly and paid by
the hotel or caterer providing such food or beverage service
to users of the Center.
( 707 ) The City agrees to participate in on-going annual
• promotion and marketing programs for the Convention Center .
The City agrees that the annual budget for such programs
shall be commensurate with industry standards for promotional
activities of similar facilities .
( 708 ) Developer agrees to provide an on-going promotion
• and marketing program for the Headquarters Hotel which is
commensurate with on-going marketing of other similar
facilities and consistent with its position as the
Headquarters Hotel for the Convention Center .
( 709 ) The City or the manager of the Convention Center
• facility shall grant to the Headquarters Hotel easements
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•
• 0
through the Convention Center for the purpose of providing
reasonable access to the Hotel and required exits, including
emergency exits, from the Hotel as may be required by the
City Building and Fire Safety Codes. Such access shall be
reasonable to make the plan for operation of the two
• facilities workable; provided, however, that such access
shall not preclude securing the Convention Center or access
to the Hotel. from the Convention Center when the Convention
Center is not in use.
( 710 ) Developer shall grant to the City or the manager of
the Convention Center facilities, easements through the
public areas of the Hotel to assure reasonable access and
exits for the Convention Center users whether or not those
users were booked by or through the Headquarters Hotel .
Exits to be provided via these easements shall include
emergency exits as required by City Building and Fire Safety
• Codes. Such access shall be reasonable and sufficient to
make the plan for operation of the Convention Center and
Headquarters Hotel workable; provided, however, that it is
understood that access to the Hotel may be limited at certain
times of the day as may be necessary to assure the security
• • of hotel guests .
( 711) Should the Headquarters Hotel incur any deficits ,
regardless of the cause of such deficits, the deficits shall
be the sole responsibility of Developer or the owners of the
Hotel.
• (712) The City and the Developer agree that the Convention
Center and the Headquarters Hotel shall share parking, open
space, prefunction areas and the secondary-service access
located at their common wall, in their "back-of-house, " and
along the western edge of the Site. Such sharing of
• facilities shall be without charge to either party, and where
necessary, in accordance with mutually agreed upon scheduling
policies . The sharing of parking shall not absolve each
facility from meeting the parking requirements established
for it by the City at the time of final plan approval .
• It necessary, to satisfy the Headquarters Hotel parking
requirement as established by the Planned Development
District approved by the City, the City will agree to lease
to the Hotel its parking spaces which are in excess of the
parking requirement for Phase I of the Convention Center .
Payment under this lease shall be at an annual rate not less
• than 8 . 5% of the value of said spaces . This leasing
• arrangement shall continue until such spaces are needed for
• - 23 -
r
• Phase II of the Convention Center , at which time, SENCA
agrees to provide the deficient hotel parking spaces within
300 feet of the first Phase hotel property line.
(713 ) In accordance with the concepts guiding the Planned
Development, Developer agrees to share certain facilities
with the second phase hotel and expanded Convention Center,
when developed. When the second phase hotel and expanded
Convention Center are developed, both parties acknowledge
their understanding that the City will require the operators
of the second phase facilities to agree to share certain
facilities with the first phase facilities. Such planned
facilities shall include shared use of tennis courts, parking
and open space. Such sharing shall not, however , result in
an effective dilution of the economic base of either hotel,
and each facility must independently meet the parking and
open space requirements established by the City' s Ordinances
or conditions for approval of the project .
(714 ) The City agrees to impose and maintain in full force
a Special Use Condition on the privately owned public
championship golf course located approximately one mile to
the southeast of the Convention center . Such Special Use
. Condition shall provide the Headquarters Hotel with the right
to book tournaments and make advance reservations for hotel
guests as much as two or more years in advance of the
proposed playing time. This Special Use Condition shall be
an attachment to, and made a part of, this agreement between
Developer and the City. (Exhibit G)
•
(715 ) Should construction of the Cultural Center proceed,
parking provided for the Cultural Center shall be made
available for shared use by the Convention Center and the
Headquarters Hotel. In accordance with the BIA' s conditional
approval of the lease, however, this sharing shall be non-
reciprocal in any way.
( 716 ) The City agrees to explore the possibilities for the
construction of a cogeneration plant which will provide power
for sale to the Convention Center and the Headquarters
• Hotel . A response on the feasibility of such a power plant
shall be provided six months after both financing and
operating agreements for the Convention Center are in
place. Should the City initiate an engineering feasibility
study, Developer agrees to work cooperatively with the
engineer engaged to complete that study to assure that the
• cogeneration plant Can be integrated into the design of the
Convention Center/Headquarters Hotel Project .
•
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•
• • ( 717 ) The City reserves the right to establish a surcharge
fee for communications services in the Convention Center
which is commensurate with industry standards for such
services and is based upon a percentage of gross sales for
provision of special communications services for groups using
the Convention Center. Such surcharge will be placed only on
• those special communications services which depend upon a
fixed capita; investment having been made beyond that which
is customary and planned in the approved project Overview
Document. The City agrees to grant Developer, or an
affiliate thereof, the right of first refusal to provide such
equipment and services as part of a separate agreement
• between the parties .
( 718 ) The City agrees to continue to advance the funds
which may be required in advance of the project' s bond
financing in order to complete necessary portions of the
marketing studies, architectural work, survey, and appraisals
• related to the Convention Center . It is understood, however,
that all such funds advanced by the City shall be reimbursed
through the proceeds of the bonds upon successfully securing
financing for the Project.
• • ( 719 ) Developer agrees to commence development of the
Phase II Hotel no later than the date that the initial
Headquarters Hotel reaches an occupancy rate of 70% for a
period of two consecutive years , or when the Headquarters
Hotel reaches an occupancy rate of 724 for one year,
whichever is sooner . The second phase of the Convention
Center will be developed by SENCA Palm Springs, Inc. or it
successor, concurrently with the Phase II Hotel.
Construction of these facilities will commence within
eighteen (18 ) months of these starting dates, provided City,
at its sole discretion, determines to pay the debt services
required for Phase II of the Convention Center . Developer
• agrees to permit easements and access to the City for
development of Phase II of the Convention Center .
( 720) The City agrees to execute an agreement for
operation of the Convention Center facility with an entity or
individual acceptable to the City, in its sole discretion ,
• and having the demonstrated capability for operation of such
a facility .
( 721 ) The City specifically reserves to itself certain
exclusive and/or preferential rights as to the Convention
Center facility ' s use , including , although not necessarily
•
- 25 -
•
•
• limited to, the City ' s right of first refusal for bookings
eighteen ( 18) or more months in advance of its use.
(722) The City has commissioned studies from the firms of
Laventhol & Horwath (completed 8/81) , Touche-Ross & Company
(completed 12/7/82) and Williams-Kuebelbeck & Associates
(completed 11/81) to establish the feasibility of a
Convention/Cultural Facility. Based upon these studies, the
City issued a Request for Proposals (REP) seeking a Master
Developer for the Convention Center Project . Following a
competitive selection process, this REP resulted in the City
contracting with SENCA as described in Exhibit "B" to obtain
the services of the SENCA development team.
The City and Developer now reaffirm their respective
commitments to the activities and responsibilities outlined
in the following documents:
0 Minute Order 3308, dated 11/2/83, approving a Cooperation
Agreement with SENCA, et.al . as Master Developer for the
Convention Center District.
Resolution 14971, dated 3/7/84, approving a revised project
site and Letter of Understanding for the Palm Springs
0 Convention/Cultural Center .
Resolution 15037, dated 5/2/84, approving the Convention
Center District ' s proposed first phase concept .
Resolution 15095 , dated 6/6/84, approving a revised
timetable.
Resolution 15096 , dated 6/15/84, approving an Inducement
Resolution for $100 ,000 ,000 in project-related bond
indebtedness .
0 Resolution 224 , dated 6/19/84 (Community Redevelopment
Agency) , approving a similar Inducement Resolution.
Resolution 15251,, dated 6/27/84 , approving a Project Overview
Document and authorizing the transmittal of the document to
financial underwriters and other interested parties .
(723 ) Developer agrees , with the City ' s approval , to
execute an agreement for operation of the Headquarters Hotel
with an organization having the demonstrated capability for
operation of such a facility. All possible successors shall
0 have a comparable level of experience and the documented
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•
financial capacity to assume the role of operator of the
Hotel. The City shall have the continuing right of approval
of any change in the Headquarters Hotel operator. Such
approval shall be based upon comparability to the original
operator and such approval shall not be unreasonably
• withheld. Developer further agrees that any agreement for
operation of the Hotel will assure fulfillment of all of
Developer ' s responsibilities to the City with respect to
operation of the Headquarters Hotel.
(724) Due to the sharing of mechanical facilities between
• the Convention Center and the Hotel, whenever reasonably
possible, sub-meters will be installed in order to calculate
the cost of all utilities . If the installation of such sub-
meters is not reasonably possible, a formula will be agreed
upon by the parties hereto to make such calculations .
• ( 725 ) The parties hereto acknowledge and agree that the
Reimbursement Agreement with the banks furnishing the Letters
of Credit contemplated by the Financing Documents is not yet
finalized and depends upon obtaining Letters of Credit or
other forms of credit enhancement . It is anticipated that
• these matters will be finalized on or before December 21,
1985 .
These matters may require revisions to this Agreement to
conform with final terms of the Reimbursement Agreement . The
parties, therefore, agree that such Reimbursement Agreements
shall be finalized no later than December 21, 1985 and that
this Agreement shall be revised to conform thereto. If the
parties are unable to finalize the Reimbursement Agreement by
that date, the parties may, if they mutually so agree, extend
this Agreement, otherwise this Agreement shall terminate for
all purposes .
•
December 31, 1984 CITY OF PALM SPRINGS, ALIFORNIA
By
rank M. Boger� � ayor
• Byw /Ff',
Norman R. King,/ City Manager
•
•
• - 27 -
December 31, 1984 COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRI
By
• Frank M. Bogert, irman
BY z <57/,/
Norman R. King{ Secretary
•
December 31, 1984 HOTEL & CONVENTION CENTER PARTNERS I,
LTD. , A CALIFORNIA LIMITED
PARTNERSHIP BY SENCA INVESTORS
INC. , A CALIFORNIA CORPORATION,
• GENERAL PARTNER
BY (iG�GGGy
` - - President
• • December 31, 1984 SHALE ENERGY
/CORPORATION OF AMERI/CA
BY
•
•
•
•
'• - 28 -
FIRST SUPPLEMENT TO THE AMENDED
• AND RESTATED DEVELOPMENT AGREEMENT
This First Supplement to the Amended and Restated Development Agreement (the
"Agreement") is made and entered into as of the 20th day of December, 1985 by and
between the City of Palm Springs, a municipal corporation (the "City"); the Community
• Redevelopment Agency of the City of Palm Springs (the "Agency"); the SENCA/Palm
Springs Project Joint Venture, a Texas joint venture (the "Developer"), the joint venturers
of which are Crow Palm Springs Inc., a Texas corporation; G&H Palm Springs Inc., a Texas
corporation; and SENCA Investors Inc., a California corporation ("SENCA Investors");
Shale Energy Corporation of America, a Texas corporation ("Shale Energy"); SENCA/Palm
Springs Irc., a California corporation ("SENCA"); Hotel and Convention Center Partners I-
• XI Ltd., eleven California limited partnerships (collectively, the "Hotel Developer"); and
the City of Palm Springs Public Facilities Corporation (the "Corporation").
RECITALS
• 1. Pursuant to eleven (11) separate Amended and Restated Development Agree-
ments entered into effective as of December 31, 1984, as amended by Amendment No. 1
to the Amended and Restated Development Agreement for the Palm Springs Convention
Center and Hotel dated November 6, 1985 (collectively, the "Development Agreement") by
and among the Agency, the Hotel Developer, the City and Shale Energy, it was agreed
among the foregoing parties to effectuate the Redevelopment Plan for the Palm Springs
! • Tahquitz Andreas District Redevelopment Project of the Agency by making provision for
the acquisition of land and the financing and construction of a Convention Center (the
"Convention Center") and a Headquarters Hotel (the "Hotel," the Convention Center and
the Hotel herein collectively called the "Project") near the Palm Springs central business
district.
• 2. Pursuant to the terms of the Agency Agreement, dated as of December 1, 1985
(the "Agency Agreement"), the Corporation has appointed the City as its agent to carry
out all phases of supervision and construction of the Convention Center.
3. Pursuant to the terms of the Development Agreement, the City was to cause the
Convention Center to be built pursuant to a construction agreement between the City and
• Shale Energy.
4. In connection with the Development Agreement, the Agency loaned to SENCA an
aggregate sum of $3,364,000.00 which, together with all accrued interest, will total
$3,543,662.94 as of December 31, 1984 (the "Agency Loan"). Of the total balance owing
on the Agency Loan, $591,459.36 relates to the Convention Center site (the "Convention
• Center Loan Component" and the "Convention Center Site," respectively); $1,986,807.74
relates to the Headquarters Hotel site (the "Hotel Loan Component" and the "Hotel Site,"
respectively); and $965,395.84 relates to that certain land contiguous to the Hotel and
Convention Center sites (the "Phase II Loan Component" and the "Phase II Site,"
respectively).
• 5. The Developer desires to assume the rights and obligations of Shale Energy under
• the Development Agreement which pertain to the Convention Center, and the City is
willing to consent to such assumption, all upon and subject to the terms and provisions
contained herein.
• Page 1 of 14
6. The City and the Developer desire to enter into this Agreement for the purpose
of evidencing such assumption and the City's consent thereto and to provide for certain
modifications and clarifications to the Development Agreement.
• • 7. The City and the Hotel Developer desire to enter into this Agreement for the
purpose of clarifying certain provisions of the Development Agreement with respect to
the development and operation of the Hotel.
8. The City, Agency, Corporation, Developer and SENCA desire to enter into this
Agreement to provide for certain modifications to, and clarifications of, the Development
• Agreement and the Agency Loan and to provide for the disposition of the Phase II Site and
repayment of the Phase II Loan Component.
9. This Agreement is made in contemplation of the redemption from escrowed funds
held by the Trustee of the 1984 Variable Rate Demand Certificates of Participation
• (Convention Center Project), the issuance of the 1985 Certificates of Participation
(Convention Center Project) (the "1985 Certificates"), and the release from escrow of
funds held by the Trustee representing proceeds of the 1984 Variable Rate Demand
Certificates of Participation (Headquarters Hotel Projects I-XI) (the "Hotel Certificates"),
which transactions are collectively referred to herein as the "Closing."
• NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements contained herein, the City, the Agency, the Developer, the
Corporation, the Hotel Developer and SENCA hereby agree as follows:
AGREEMENTS
• • 1. The Developer shall assume all of the rights, duties and obligations of Shale
Energy under the Development Agreement to the extent and only to the extent that such
rights, duties and obligations pertain to the Convention Center, with the following
modifications and clarifications:
• (a) Any reference in the Development Agreement to the Developer with
respect to the Convention Center and the Convention Center only shall be
deemed to mean the Developer as defined herein.
(b) It is the intent of the City and the Developer that subsequent to the
execution of this Agreement and the obtaining of the financing for the
• Convention Center, the Developer will produce plans, specifications and
working drawings (the "Plans") substantially consistent with the architectural
concept, project description and scope of work described in Exhibits C, D and
E attached to the Development Agreement. Notwithstanding any provision of
the Development Agreement (including Section (301)) to the contrary, the City
and the Developer hereby acknowledge and agree that the Plans are in the
• preliminary stages of preparation and that preparation of final Plans will
require mutual effort and cooperation of the City and the Developer. The
Plans shall be subject to the reasonable review and approval of both the City
and the Agency, which approval shall not be unreasonably withheld or delayed.
Plans developed pursuant to this Agreement shall be the property of the City.
• Concurrently with preparation of the Plans, the Developer shall cause a
• budget to be prepared detailing the cost of developing and constructing the
Convention Center in accordance with the Plans, which cost shall include:
• Page 2 of 14
•
(i) the construction cost of the Convention Center including contractor's
fee and contingency, furniture, fixtures and equipment and landscaping
and sitework (collectively, the "Construction Cost");
• • (ii) architectural, engineering and other professional fees (collectively,
the "Professional Fees");
(iii) fees payable to the Developer with respect to the Convention Center
("Development Fees");
i (iv) Real Estate Taxes (herein so called); and
(v) All other costs and expenses to be incurred in connection with
development and construction of the Convention Center in accordance
with the Plans ("Other Costs"); but which costs shall exclude each of the
following items as such items, having a cumulative budget totalling an
• additional $4,180,000, are identified in the Preliminary Palm Springs
Convention Center Project Budget dated November 25, 1984:
(a) all Land Acquisition Expenses,
• (b) all Working Capital Allowances and Initial Services Budgets,
(c) all City Permit Costs, Special Assessments and Fees;
(d) the reimbursement for all City costs incurred prior to Closing;
• (e) the costs of any Presentations; and
(f) the cost of Title Insurance.
Other Costs as used herein shall additionally exclude the increased
Facilities Acquisition and Construction Account budgets for the cost of
• earthquake insurance during the construction period and for contingency
allowances to provide enhanced structural systems and reserves relating
to earthquake code compliance and other purposes as designated by the
City. All exclusions from Other Costs as defined in this sub-paragraph
1(b)(v) are referred to herein as the "Supplemental Convention Center
Budget."
•
The aggregate amount of the Construction Costs, the Professional Fees, the
Real Estate Taxes and the Other Costs shall be called the "Convention Center
Budget." The City and the Developer have mutually agreed to use their best
efforts to cause the Convention Center Budget (exclusive of the Supplemental
Convention Center Budget) to be an amount not exceeding $18,805,000;
• provided, however, the Convention Center Budget shall be subject to the
reasonable review and approval of both the City and the Agency, which
approval shall not be unreasonably withheld or delayed. While the entire cost
and expense of developing and constructing the Convention Center shall be
borne by the Corporation, the Developer shall exercise its best efforts to cause
the Convention Center to be developed and constructed (exclusive of the
• Supplemental Convention Center Budget) for an amount not to exceed the
• Convention Center Budget, which efforts shall include but not be limited to
negotiating for and on behalf of the City one or more construction contracts
Page 3 of 14
•
•
whereby the contractor(s) (selected by the Developer with the approval of the
City not to be unreasonably withheld) shall be obligated to the City to
construct, furnish and equip the Convention Center ("Construction Contracts")
for an amount not to exceed the portion of the Convention Center Budget
• allocated to the Construction Cost ("Guaranteed Maximum Cost Construction
Contract"). To the extent that the Convention Center Budget (exclusive of the
Supplemental Convention Center Budget) based upon the Plans may differ from
$18,805,000, the City in its sole discretion, may require the Developer to (i)
revise the Plans in order to achieve such Convention Center Budget amount or
GO agree that such difference from $18,805,000, if greater than $18,805,000,
• will be paid by the City, or if less than $18,805,000, will be applied to pre-pay
outstanding Certificates or be otherwise applied as the City shall subsequently
direct. Following approval of the Plans and the Convention Center Budget, no
modification to either may be made without the approval of both the City and
the Developer. The Developer shall be under no obligation to approve any
• modification to the Plans which results in an increase in the Convention
Center Budget unless the City has demonstrated to the Developer reasonable
satisfaction that the City has funds available and committed to development
and construction of the Convention Center (including otherwise uncommitted
funds contained within the Supplemental Convention Center Budget) with
which to pay such increased costs.
•
(c) It is agreed that all Construction Contracts shall be executed by both
the Developer and the City, and shall contain a provision to the effect that
funds for payments under the Construction Contracts will be disbursed by the
Trustee under the Trust Agreement for the 1985 Certificates pursuant to
requisitions by the City.
•
(d) Developer agrees that a Guaranteed Maximum Cost Construction
Contract will be executed by the later of (i) May 30, 1986 or (ii) 90 days prior
to the date required for execution of such contract pursuant to the Trust
Agreement for the 1985 Certificates. In the event a Guaranteed Maximum
Cost Construction Contract is not executed by said date, the City shall have
• the right to terminate this Agreement without liability for the Convention
Center Developer Fee (hereinafter defined) thereafter payable pursuant to
Paragraph 2 hereof. The City and Developer each agree to exercise their
reasonable best efforts to cause the Construction Contract to be executed by
the time herein required but agree that any failure by the City in that respect
will not abrogate its right of termination hereunder.
I•
(e) Notwithstanding any provision of the Development Agreement
(including (i) the first paragraph of Section (303), (ii) the last two sentences of
I the second paragraph of Section (304) and (iii) the fourth paragraph of Section
(304)) to the contrary, the Developer's obligation to the City with respect to
the development and construction of the Convention Center and the cost of
• such development and construction shall be as set forth in sub-paragraphs l(b),
1(c) and l(d) of this Agreement.
(f) The cost of the insurance described in Section (306) of the
Development Agreement shall be included in the Supplemental Convention
• Center Budget and shall be a cost of developing and constructing the
Convention Center to be paid by the City. Developer will investigate whether
• its owner-controlled insurance program will be available for the Convention
Center.
• Page 4 of 14
•
(g) Section (307) of the Development Agreement is hereby modified to
provide that the requirement that the Developer provide a performance bond
to guarantee completion of the Convention Center and a labor and material
• payment bond with respect to the Convention Center may be waived at the
• Developer's request and with the City's approval.
2. Development fees in the aggregate amount of $990,000 are payable with respect
to the Convention Center (the "Convention Center Development Fee"). The Convention
Center Development Fee shall be paid to the Developer (or to any person or entity
designated by the Developer) as follows: $464,667 at Closing; $262,667 upon execution of
• the Guaranteed Maximum Cost Construction Contract; and $262,667 (less a retainer of
$26,266 to be paid upon issuance of a Certificate of Occupancy) payable coincident with
the construction draws in each case in an amount proportionate to the ratio of the amount
of the current construction draw to the maximum guaranteed construction price.
3. The City hereby consents to the assumption by Developer of Shale Energy's
• rights, duties and obligations under the Development Agreement which pertain to the
Convention Center as hereby modified and clarified.
4. It is expressly understood and agreed by and between the City and the Developer
that the obligations of the Developer set forth herein and in the Development Agreement
are expressly limited to the development of the Convention Center and to the disposition
• of the Agency Loan. Nothing in this Agreement, however, is intended to diminish any
obligation of the Hotel Developer under the Development Agreement with respect to the
Hotel.
5. Notwithstanding any provision (including the third paragraph of Section (304) and
• • Article VII) of the Development Agreement to the contrary, the City and the Hotel
Developer acknowledge and agree that the operation of the Hotel and the Convention
Center and the sharing of any party walls, mechanical and other facilities and reciprocal
access between the two projects shall be governed by a reciprocal easement and operating
agreement to be approved and entered into by and between the City and the Hotel
Developer subsequent to the execution and delivery of this Agreement.
• 6. The City hereby approves Wyndham Hotel Company, a Texas corporation, as the
manager of the Hotel.
7. In connection with the Agency Loan, the parties hereby agree as follows:
(a) At the Closing or as soon thereafter as funds become available for
such purpose pursuant to the terms of the Trust Agreement for the 1985
Certificates, the Corporation or the City shall pay to the Agency $591,459.36
from the proceeds of the 1985 Certificates. At the Closing, the Hotel
Developer shall pay to the Agency an aggregate sum of $1,986,807.74 from the
aggregate proceeds of the Hotel Certificates. In consideration of the
• foregoing, at the Closing, the Agency agrees to release Lots 1 and 2 and A
�I through E inclusive of Tract No. 20485 as per Map recorded in Book 147, pages
55 and 56 and Maps in the Riverside County Recorder's Office from the
Leasehold Deed of Trust evidencing the Agency Loan;
(b) At the Closing, the Developer shall through SENCA additionally pay
• to the Agency $565,395.84 representing partial payment of the then remaining
• outstanding balance of the Agency Loan, together with $55,019.10 to the
Riverside County Tax Assessor as payment of the 1985-1986 Property Tax
Page 5 of 14
•
•
obligations relating to the Phase II Site, whereupon the Agency shall modify
and extend the Promissory Note and shall further modify the Leasehold Deed
of Trust evidencing the Agency Loan to provide that the interest on the
$400,000 remaining unpaid balance shall thereafter accrue as hereinafter
• provided on an annual compounding basis at twelve percent (12%) per annum
through its extended date of final maturity on June 1, 1991 (the "Loan
Extension");
(c) After the Closing, all Property Taxes with respect to the Phase II Site
will be assessed against, and be payable by, the then holder of the Phase II
• Site, as hereinafter set forth;
(d) On or before May 1, 1986, the Developer shall advise the Agency in
writing of its decision either (i) to decline to develop Phase II Site and to
thereby surrender its development rights with respect to the Phase II Site as
• hereinafter set forth; or in the alternative, (10 to pay the remaining balance
due pursuant to the Loan Extension, in which event the Loan Extension will
mature and be due in full, together with accrued interest thereon, on May 30,
1986;
(e) If on or before May 1, 1986, the Developer has notified the Agency of
• its decision not to develop the Phase II Site, the City and Agency shall
designate SENCA as the developer of the Phase II Site, provided that SENCA
shall on or before June 1, 1986 have provided proof to the City and the Agency
of its prior payments of $210,000 to Crow Palm Springs Inc., and of $52,500 to
G&H Palm Springs Inc., in accordance with the terms of the Assignment of Net
Proceeds Agreement by and between the Venturers of the Developer; and
• • further provided that the City and the Agency shall have received proof from
the Developer that concurrent with such payments by SENCA, the SENCA
Group and each of them were relieved of their covenants not to compete as
these covenants evidenced in the Certificate and Agreement by and between
the Venturers of the Developer pertain to development of the Phase II Site. In
this event, the City and the Agency shall further amend the Loan Extension to
• provide that such loan shall mature and be due in full, together with accrued
interest thereon, on June 1, 1991.
(f) In the event SENCA repays the full principal amount of the Loan
Extension on or prior to June 1, 1989, all interest payable by SENCA with
respect thereto will be forgiven and the Agency will return the cancelled Loan
• Extension Promissory Note upon payment of the $400,000 principal amount
thereof;
(g) In the event the Loan Extension is not prepaid pursuant to paragraph
(f) above, the Loan Extension will mature and be due in full on June 1, 1991,
including all accrued interest thereon.
i
8. The Developer acknowledges that this Agreement is subject to, and governed by
the terms of the Agency Agreement, as attached hereto in draft form dated December 19,
1985.
• 9. All terms used in this Agreement with the initial letters capitalized and not
• otherwise defined herein shall have the meaning ascribed to such terms in the
Development Agreement, the Trust Agreement for the 1985 Certificates or the Trust
Agreement for the Hotel Certificates.
Page 6 of 14
•
10. If and to the extent that any provision of the Development Agreement should in
any manner conflict or otherwise be inconsistent with this Agreement, this Agreement
• shall prevail.
• 11. This Agreement may be executed in separate counterparts, each of which shall
be an original of this Agreement and both of which, taken together, will constitute the
entire Agreement between the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their respective officers and authorized representatives
thereunto duly authorized as of the date first above written.
CITY OF PALM SPRINGS, CALIFORNIA
BY
Mayor
� BY
City Manager
PALM SPRINGS PROJECT JOINT VENTURE,
• A Texas Joint Venture
By: Crow Palm Springs, Inc.
a Texas Corporation
Managing Venturer
•
By
Pr'e,sWent
•
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
• By
Chairman
By
Secretary
•
Page 7 of 14
•
HOTEL AND CONVENTION CENTER
PARTNERS I, LTD.
a California Limited Partnership
• • By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
• Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
•
By
_ Ay
Pres t
•
HOTEL AND CONVENTION CENTER
PARTNERS IT, LTD.
a California Limited Partnership
By: Palm Springs Hotel Joint Venture
• • a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
• Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
•
By
Pr si nt
•
•
•
Page 8 of 14
•
•
HOTEL AND CONVENTION CENTER
PARTNERS III, LTD.
a California Limited Partnership
• • By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
• Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
•
By
Pre 'de t
•
HOTEL AND CONVENTION CENTER
PARTNERS IV, LTD.
a California Limited Partnership
By: Palm Springs Hotel Joint Venture
• • a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
• Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
•
By
si e
•
•
•
I
Page 9 of 14
i•
•
HOTEL AND CONVENTION CENTER
PARTNERS V, LTD.
a California Limited Partnership
• • By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
• Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
•
By
_ Z::�*
Pre 'de t
•
HOTEL AND CONVENTION CENTER
PARTNERS VI, LTD.
a California Limited Partnership
• • By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
• Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
•
By
_ ,�A
rre deg t
•
•
•
Page 10 of 14
N•
i
HOTEL AND CONVENTION CENTER
PARTNERS VII, LTD.
a California Limited Partnership
v • By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
• Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
•
By
rest
•
HOTEL AND CONVENTION CENTER
PARTNERS VIII, LTD.
a California Limited Partnership
• • By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
• Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
•
By
•
•
•
1 Page 11 of 14
•
HOTEL AND CONVENTION CENTER
PARTNERS IX, LTD.
a California Limited Partnership
• By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
• Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
•
By
PTtaibent
•
HOTEL AND CONVENTION CENTER
PARTNERS X, LTD.
a California Limited Partnership
• • By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
• Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
•
By
_ zpq
de t
•
•
•
Page 12 of 14
•
•
HOTEL AND CONVENTION CENTER
PARTNERS XI, LTD.
• a California Limited Partnership
• By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
• Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
•
By <�p
P r 78-i-d4 nt
•
CITY OF PALM SPRINGS
PUBLIC FACILITIES CORPORATION
• • By
President
• SENCA/PAL SPRINGS, .
a Calif a Corpora i
By
• President
SENCA INVES S, INC.
a Califor 'a orporati n
•
By L
President
•
•
•
Page 13 of 14
K
SHALE ENERG�Y ORPORAT OF AMERICA
a Texas rp ation
• • '
BY
Pr sident
•
•
r
•
•
•
•
•
•
• Page 14 of 14
•
IN WITNESS WHEREOF, this Agreement has duly executed by
the parties hereto on the day and year first above written.
• CITY OF PALM SPRINGS, CALIFORNIA
By r
Mayor
By "4"
City Manager
SENCA/PALM SPRINGS PROJECT JOINT VENTURE,
• a Texas joint venture
By: Crow Palm Springs, Inc. ,
a Texas corporation
Managing Venture
•
By:
' ent
COMMUNITY REDEVELOPMENT AGENCY OF
• • THE CITY OF PALM SPRINGS
By -
C11VC irman
By
Secretary
HOTEL AND CONVENTION CENTER PARTNERS II ,
LTD. , a California limited partnership
By: PALM SPRINGS HOTEL JOINT VENTURE,
a Texas joint venture
Its sole General Partner
• By: CPS PARTNERSHIP,
a Texas general partnership
Its Managing V nturer
By:
• Author ' ed Agent
•
•
Development Agr btwn SENCA,
Y .. ' Hdqrtrs Hote1 ,P.S. Conv Center
CRA & City, PA2B6-10
AGR #111 (CRA)AGR #2167(City)
DEVELOPMENT AGREEMENT Res 277 & Res 15355, 12-5-84
PALM SPRINGS CONVENTION CENTER AND HOTEL
This Agreement is entered into by and between the Community Redevelopment Agency
of the City of Palm Springs ("Agency"), Hotel and Convention Center Partners I, Ltd.,
a California limited partnership ("Developer"), the City of Palm Springs, a municipal
corporation ("City") and Shale Energy Corporation of America, a Texas corporation
("SENCA"). The parties hereto do hereby agree as follows:
I. SUBJECT OF AGREEMENT
000) Purpose of the Agreement
The purpose of this Agreement is to effectuate the Redevelopment Plan for
the Palm Springs Tahquitz-Andreas District Redevelopment Project of the Agency
("Redevelopment Plan") by making provision for the acquisition of land and
the financing and construction of a convention center and Headquarters Hotel
("the Project") near the Palm Springs central business district.
The development of the Project pursuant to this Agreement is in the public
interest of the City and the Agency, will be of benefit to the Agency's
Redevelopment Project area, will promote the health, safety, and welfare of
the residents of the community, will eliminate blighted conditions within the
Redevelopment Project Area, and will be in accord with the public purposes
and provisions of applicable federal, state and local laws and requirements.
(101) The Redevelopment Plan
This Agreement is subject to the provisions of the Redevelopment Plan which
was approved and adopted on July 19, 1983, by the City Council of the City
of Palm Springs, by Ordinance No. 1187. The Redevelopment Plan as it now
exists, and as it may be subsequently amended, is incorporated herein by reference
and made a part hereof as though duly set forth herein.
Any amendments to the Redevelopment Plan which change the uses or
development permitted on the Site or otherwise change the restrictions or
controls which apply to the Site, shall require the written consent of the
Developer in Phase I and SENCA in Phase II as such phases are defined in Section
103. Amendments to the Redevelopment Plan applying to other property in
the Project Area shall not require the consent of the Developer or SENCA.
(102) The Project Area
The Project Area is all of the real property described as being included within
the Revelopment Plan referred to above.
(103) The Site
The "Site" of the Phase I portion of the development, including the Headquarters
Hotel and Convention Center consists of Blocks 107, 108, 109, 110, 112, 113
and 114 of Section 14, Township 4 South, Range 4 East-San Bernardino Base
and Meridian; the "Site" for the proposed cultural center consists of Blocks
7, 8 and Ill of Section 14, Township 4 South, Range 4 East-San Bernardino
Base and Meridian, and the "Site" for the Phase II portion of the development,
including a second hotel and overflow parking for the headquarters hotel and
Convention Center, consists of blocks 231, 219 and 220 of Section 14, Township
4 South, Range 4 East-San Bernardino Base and Meridian.
(104) Parties to the Agreement
A. The Agency
The Agency is a public body, corporate and politic, duly created,
established and authorized to transact business and exercise its powers,
all under and pursuant to the Community Redevelopment Law (Part
1 of Division 24, commencing with Section 33000) of the Health and
Safety Code of the State of California.
The principal office of the agency and City is 3200 East
Tahquitz-McCallum Way, Palm Springs, California 92262.
B. The Developer
The Developer is Hotel and Convention Center Partners I, Ltd., a
California limited partnership, the general partner of which is SENCA
Investors, Inc., a California corporation with offices at 650 South Cherry
Street - Suite 840, Denver, Colorado 80222.
The qualifications and identities of the developer are of particular
concern to the Agency. It is because of these qualifications and
identities that the Agency has entered into this Agreement with
Developer. No voluntary of involuntary successor in interest of
Developer shall acquire any rights or powers under this Agreement
except as expressly set forth herein. It is contemplated that developer
shall be one of eleven similar limited partnerships, each of which will
construct a portion of the Headquarters Hotel and will acquire a portion
of the Convention Center.
Prior to the issuance of a certificate or certificates of completion
for the Site by the Agency and the issuance by the City of a Certificate
of Occupancy as hereinafter provided, Developer shall not assign all
or any part of its interest in this Agreement, unless otherwise provided
herein, without the prior written approval of the Agency except for
the purpose of obtaining financing directly related to the construction
of the improvements contemplated herein, which may include pledging
its interest in this Agreement to secure such financing, if required.
No permitted assignment will release Developer from its obligations
hereunder without prior written approval by Agency.
C. The City
The City of Palm Springs is a municipal corporation created pursuant
to the general laws of the State of California.
II. ACQUISITION OF THE SITE
(200) Site to be Acquired by SENCA
SENCA presently has available to it options to ground lease the Site from certain
allottees of the Agua Caliente Band of Cahuilla Indians. The Site consists of
approximately 19.7 acres, located at the northwest corner of the intersection
of Tahquitz-McCallum Way and Avenida Caballeros.
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The aforementioned allottees gave an option dated February 28, 1984 (referred
to as the "Master Lease") to Shale Energy Corporation of America, a Texas
corporation (hereinafter "SENCA"). The option contains a form of lease which
SENCA Palm Springs, Inc., a California Corporation, and a wholly owned
subsidiary of SENCA, will execute as the assignee of SENCA. SENCA Palm
Springs, Inc. will then sublease to the City of Palm Springs that portion of the
Site relating to the Convention Center and to the Agency that portion of the
Site relating to the Headquarters Hotel. The City, with respect to its portion
of the Site, and the Agency with respect to its portion of the Site, will
sub-sublease to Developer and the other ten developers pursuant to separate
and independent sub-subleases, an interest in the Site.
It is understood that the Site is presently burdened by certain existing leases
between the allottees and other parties. Developer is obligated by the terms
of the option to cause those leasehold interests to be extinguished. The Agency
agrees to use its best efforts to acquire said interests by the exercise of its
powers of eminent domain if necessary.
If, by mutual agreement of the Developer and the Agency, eminent domain
proceedings are required, Developer agrees to advance to Agency, upon demand
by Agency, the cost of said acquisitions including court costs, attorney's fees,
and compensation required to be paid to property owners with respect to that
portion of the Site which will be part of the Headquarters Hotel. Agency will
assume the cost of acquisition with respect to the acquisition of leasehold
interests affecting that portion of the Site utilized by the Convention Center
and additional property to be acquired in fee simple.
III. DEVELOPMENT OF THE SITE
(300) Development of the Site by the Developer
A. Preliminary Recitals
City and Agency invited proposals from qualified developers for the
development of a Convention Center and Headquarters Hotel. City
and Agency have selected SENCA, an affiliate of the General Partner,
as the master developer of the Project after carefully reviewing all
proposals because of the quality of the proposal for development
submitted by SENCA, the quality of SENCA's development team
(described in Exhibit "A" attached hereto and herein after referred
to collectively as SENCA), the financial capabilities of SENCA and
SENCA's experience and qualifications for carrying out a project of
this scope. Upon selection of SENCA, Agency and SENCA entered
into a "Cooperation Agreement," a copy of which is attached to this
Agreement as Exhibit "B" and incorporated herein by this reference
and made a part hereof.
Subsequently, SENCA submitted an architectural concept for the
development of the Site, a copy of which is attached to this Agreement
as Exhibit "C" and incorporated herein by this reference and made
a part hereof.
Thereafter, SENCA, Agency and City agreed that the actual developer
would be the Developer described in the first paragraph of this
Agreement. Such agreement is formalized by the provisions of this
Agreement.
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It is the intent of the parties to this agreement that the financing
of the Convention Center and the Hotel will be provided through tax
exempt financings. The availability of this financing is a condition
precedent to commencing the construction of the project. If, for any
reason, said financing is not available, each party shall bear the costs
advanced by said party in connection with the efforts to obtain such
financing.
(301) Construction of Convention Center
It is the intent of the parties that the master developer, will produce plans,
specifications and working drawings in accordance with the approved concept,
for the Convention Center development subsequent to the execution of this
Agreement and the obtaining of financing for the Convention Center and Hotel;
such plans, specifications and working drawings shall be consistent with the
architectural concept and project description (Exhibits "C" and "D"), and with
a document entitled Scope of Work (Exhibit E) for Palm Springs Convention
Center, incorporated herein by reference. Said plans, specifications and working
drawings shall be subject to review and approval by City and Agency, which
approval shall not be unreasonably withheld, provided said plans, specifications
and working drawings reasonably conform to the project description and
architectural concept. It is the intent of this Agreement to set forth as precisely
as possible at this time, the rights, duties and obligations of the parties so that
they may proceed to seek and finalize appropriate financing for the Project
and prepare and finalize appropriate plans and specifications for the Project.
(302) Construction of the Hotel
It shall be the responsibility of the developer to develop plans and specifications
for the balance of the Phase I Project, including the Hotel, subject to approval
by City and Agency of said plans and specifications which approval shall not
be unreasonably withheld. The Developer shall cause the project to be
constructed in accordance with plans and specifications and in accordance with
the "Schedule of Performance" attached to this Agreement as Exhibit "F" and
incorporated herein by this reference and made a part hereof.
(303) Construction of Center
The City will cause the Convention Center to be built pursuant to an agreement
between the City and SENCA. At its completion, City will sell separate interests
therein to each of the eleven developer limited partnerships; Developer agrees
to acquire its interest in said Center when completed, in accordance with the
financing documents ("Financing Documents"). Said documents consist of:
Installment Sale Agreement; Agency Agreement; Assignment Agreement; Trust
Agreement; Reimbursement Agreement between the City and Mitsubishi Bank,
Limited, NY Branch; Letter of Credit; Official Statements; Private Placement
Memorandum; Certificate of Participation Purchase Agreement and the
Agreement for the Construction and Sale of Improvements.
Developer and Agency and City agree that SENCA will be used by Developer
for the purpose of constructing the Hotel and by City for the purpose of
constructing the Convention Center.
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(304) Cost of Project
Developer agrees to construct its portion of the Headquarters Hotel to be
operated by a hotel management company acceptable to the City. The cost
of the portion of the Hotel to be owned by Developer shall be the full
responsibility of the developer, and said cost shall only be limited by provisions
in the Financing Documents relating to the tax exempt financing for the Hotel,
which financing, the parties hereto hereby agree, is necessary for the construction
of the Project.
City and Agency are responsible for the cost of construction of the Convention
Center and the parties agree that said costs shall be financed by industrial
development bonds, certificates of participation or other tax exempt instruments.
The parties agree that the cost of construction of the Convention Center shall
not exceed the amount set forth in this agreement as the maximum cost for
construction of the Convention Center. The parties agree that the guarantee
by SENCA to construct the Convention Center at a cost not to exceed said
amount is essential to the obtaining by City and Agency of tax exempt financing
and letters of credit to secure said financing for the Project.
The parties hereto agree that the Project consists of two interdependent
facilities, the Headuarters Hotel and a Convention Center. These facilities
will share common walls and common mechanical facilities. The financing
of the Convention Center is entirely dependent upon the availability of similar
tax exempt financing for the Hotel. It will not be possible to finance one facility
and construct it without financing and constructing the other. The ability to
utilize tax exempt financing, as therefore necessarily contemplated for the
Hotel expires on December 31, 1984; and hence time is of the essence to conclude
financing if this project is ever to be constructed. The credit and the financial
commitments of the developer and a group of Letter of Credit issuing institutions
are essential elements in obtaining the financing for the Hotel and the Convention
Center and the existence of a Guaranteed Maximum Price Construction Contract
for each facility that is satisfactory to these institutions is integral to their
consent to issue such credit enhancement. The two facilities are planned to
be constructed at the same time and to open for business concurrently. The
economic viability of each is dependent upon the economic success of the other.
For instance, the financing for the Convention Center is secured in part by
the ability of the Agency to pledge real property tax increment, which will
be generated by the construction of the Hotel, to the repayment of the tax
exempt bonds necessary for the Convention Center. Kitchen facilities of the
Hotel are expressly made available to the Convention Center for events conducted
there, and parking facilities for the two facilities will be shared. It was for
the foregoing reasons, and others, that the Agency accepted the proposal for
the development of the combined facilities which it received from SENCA,
pursuant to which this Ageement was ultimately negotiated. An integral part
of the SENCA proposal was that SENCA as master developer, agreed to provide
the Letter of Credit Banks with a maximum price for the construction of the
Convention Center. The parties further acknowledge and agree that this
maximum price bid from SENCA for the construction of Convention Center
was an essential element in the ability of the Agency to secure Letter of Credit
Commitments and consequently be able to sell bonds for the construction of
the Convention Center. Consequently, the parties acknowledge and agree that
neither the Convention Center portion nor the Headquarters Hotel portion of
the Project could proceed without all of the commitments and undertakings
set forth in this Agreement, including the agreement that SENCA will cause
to be constructed the Convention Center facility. If deemed necessary by Bond
Counsel, Agency agrees to seek judicial validation of this Agreement with respect
to its ability to enter into a maximum price construction contract without
competitive bidding of the contract itself.
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SENCA hereby covenants and agrees that it will cause to be constructed the
Convention Center as described above and in accordance with the Scope of
Work document (Exhibit E) incorporated herein by reference for a maximum
price of $18,805,000, which shall consist of the total construction cost, including
contractor's fee and contingencies; architectural and engineering fees; furniture;
fixtures and equipment; landscaping and sitework; real estate taxes; insurance;
the master developer's fee; other professional fees; miscellaneous costs; and
contingencies.
Agency and City shall have the right to review and approve all subcontracts
entered into by SENCA to determine if the subcontractor is capable of performing
the work, if the subcontracts meet legal requirements for public works contracts
and subcontracts and to determine if bid prices are commensurate with prevailing
market rates for the services being bid. Such approval may not be unreasonbly
withheld. The contract with SENCA and the subcontracts shall all comply with
applicable requirements of the Government Code, the Health and Safety Code
and the Public Contracts Code of the State of California applicable to public
works constructed by City or Agency.
The contract for construction of the Convention Center shall provide that the
general contractor's fee will be calculated at the time of financing at 3.5%
of projected hard costs, not including the "contingency" line item. Should the
construction ultimately be completed for less than the contract amount, including
contingency, any realized savings shall be spent according to a predetermined
formula between the city and the contractor as an incentive to the contractor
to minimize ultimate construction costs. It is understood, however, that the
contractor shall not realize a savings by his failure to meet the plans and
specifications approved by the City for the Convention Center.
SENCA, City and Agency may increase or decrease the scope of work and increase
or decrease the maximum price referred to herein by mutual agreement. City
or Agency may require SENCA to cause additional facilities to be constructed
in excess of the scope of work for which SENCA may make additional charges,
as in the case of change orders, reflecting the cost of such additional work
and a reasonable profit thereon.
(305) Financing of Project
The obtaining of adequate financing for both the Convention Center and Hotel
portions of the Project by way of tax exempt financing is a condition precedent
to the construction of the entire Project, and such financing must be closed
concurrently for the Hotel and the Convention Center on or before December
31, 1984. Construction of either facility shall begin only when proof of financing
exists for the cost of construction of both facilities. Commitments for financing
the Hotel shall be in such form and content as is acceptable to the City and
Agency as reasonably evidencing firm and enforceable commitments for such
financing. Commitments for financing the construction of the Convention Center
shall similarly be in such for and content as is acceptable to developer as
reasonably evidencing firm and enforceable commitments for such financing.
The debt service on certificates of participation or other tax exempt instruments
sold by the City or Agency to finance the cost of construction of the Convention
Center shall be paid for by City and Agency. To that end, City will annually
appropriate out of available funds of the City specified in this paragraph, and
additional funds pledged by Agency, as more particularly described below, an
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amount sufficient to meet the annual debt service on said obligations. In no
event, however, shall City be required to pay toward debt service in any year,
an amount in excess of the amount received by City from sales tax generated
from businesses conducted on the Site; the transient occupancy tax receipts
from hotel rooms constructed on the Site; the two percent transient occupancy
tax increase assessed commencing September 1, 1984 upon all hotels in the
City of Palm Springs and the Tax Increment Revenue derived by the Agency
from the project and pledged by the Agency to the City in connection with
the Project. To the extent that those combined sources of revenue do not,
for any reason, produce sufficient revenue in any year to meet the annual debt
service for that year, the City shall be obligated only to appropriate toward
the debt service an amount equal to the total revenues received from those
sources.
The "Tax Increment Revenue" pledged by the Agency to the City shall be that
amount of tax increment revenue received by Agency annually from the property
taxes derived from the Hotel-Convention Center Project, but not more than
the amount necessary to meet the annual debt service on the Convention Center.
Details of the financing plan, to which the parties hereto agree to be bound,
including sources of revenue, financial commitments of the parties hereto,
equity participation by the parties, default and enforcement provisions, and
provision for operating shortfalls of the Project are all set forth in the Official
Statement for the Tax Exempt Issues, the Private Placement Memorandum
for the equity interests, and the Financing Documents referred to therein, which,
by this reference, are made a part of this Agreement.
(306) Insurance Provisions
Developer agrees for the entire period of this agreement, to indemnify, defend
and save City and its agents and employees harmless from any and all liability,
claims, damages or injuries to any person, including injury to Developer's
employees and all claims which arise from or are connected with the negligent
performance of or failure to perform the work or other obligations of this
Agreement, or are caused or claimed to be caused by the negligent acts of the
Developer, his agents or employees, and all expenses of investigating the
defending against same.
Liability Insurance - During the entire term of this Agreement, Developer agrees
at his sole expense to procure and maintain public liability insurance to protect
against loss from liability imposed by law for damages on account of bodily
injury, including death therefrom, suffered or alleged to be suffered by any
person or persons whomsoever, resulting directly or indirectly from any act
or activities of the Developer, his agents, servants, suppliers, guests, or business
visitors, or any person acting for the developer or under his control or direction,
and also to protect against loss from liability imposed by law for damages to
any property of any person caused directly or indirectly by or from acts or
activities of Developer, or his agent, servants, suppliers, guests, or business
visitors, or any person acting for the Developer, or under his direction or control.
Minimum limits of five-million dollars ($5,000,000), combined single limit for
bodily injury and property damage shall be maintained in full force and in effect
throughout the term of this Agreement and any extension thereof.
All of such insurance shall be primary insurance and shall name the City of
Palm Springs and the Community Redevelopment Agency of the City of Palm
Springs as additional insured.
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Developer agees that provisions of this paragraph, as to maintenance of insurance,
shall not be construed as limiting in any way the extent to which the Developer
may be held responsible for the payment of damages to persons or property
resulting from the Developer's activities, the activities of his agents, servants,
suppliers, guests, or business visitors, or the activities of any person or persons
for which the Developer is otherwise responsible.
Developer agrees to maintain or cause to be maintained the following insurance
against risk of physical damage to Project structures and other risks for the
protection of the City and the Agency:
Fire, Lightning and Extended Coverage Vandalism and Malicious Mischief
- Extended coverage shall include loss or damage by explosion, windstorm, riot,
aircraft, vehicle damage, smoke and other hazards thus normally covered.
Coverage shall be equal to the full insurable value of the Projects as such value
is determined by independent appraisal not less than every 36 months. Such
insurance may be carried in conjunction with any other fire and extended coverage
insurance carried or required to be carried by the Letter of Credit Institutions
or Certificate Holders.
Earthquake - Coverage in an amount equal to 1009/6 of the full replacement
value subject to a ten percent (10%) deductible against loss or damage to the
Project resulting from an earthquake.
Worker's Compensation Insurance - Such amounts as may be required under
the Worker's Compensation Insurance and Safety Act or such other California
law to cover all persons employed in connection with the Project.
Business Interruption Insurance - Payable to the City and the Agency in an amount
equal to the anticipated annual debt service and operating shortfall on the
Convention Center. Such coverage amounts shall be reviewed and adjusted
annually.
Builder's Risk Insurance - Developer shall purchase and maintain property
insurance upon the entire work at the site to the full insurable value thereof
during the period of construction. This insurance shall include the interests
of the Developer, the City, the Agency, the Contractor, subcontractors, and
sub-subcontractors, in the work and shall insure against the perils of Fire,
Extended Coverage, Vandalism and Malicious Mischief.
Evidence of Insurance - A Certificate of Insurance or an appropriate insurance
binder, evidencing the above insurance coverage with a company acceptable
to the City and the Agency, shall be submitted to the City and the Agency upon
execution of this Agreement and completion of project financing.
Notice to City, Insurance Coverage Change - The terms of the insurance policy
or policies issued to provide the above insurance coverage shall provide that
said insurance may not be amended or, cancelled by the carrier-, for non-payment
of premiums or, otherwise, without thirty (30) days' prior written notice of any
such amendment or cancellation. In such event, the developer shall, prior to
the cancellation date, submit to the City Clerk and Agency Secretary new
evidence of insurance in the amounts heretofore established.
_The Developer - An Independent Contractor - It is understood and agreed that
the Developer is, and at all times shall be, an independent contractor, and that
SENCA is, and at all times shall be, an independent contractor and nothing
contained herein shall be construed as making the Developer or SENCA, or
any individual whose compensation for services is paid by the Developer or
SENCA, an agent or employee of the City or the Agency; additionally, nothing
contained herein shall be construed as authorizing the Developer or SENCA
to create or assume any obligation or liability for or on behalf of the City or
the Agency. The Developer and SENCA shall provide at the outset of construction
a "Notice of Nonresponsibility" which indicates that the City or the Agency
cannot be held responsible for obligations or liabilities incurred by the Developer
or SENCA.
Limitation - Notwithstanding anything to the contrary contained in this
Agreement, the Developer's obligation to procure insurance hereunder shall
be limited to such coverage as can be obtained at reasonable rates. In the event
of a dispute hereunder, the matter shall be submitted to arbitration.
(307) Performance Bond
Agency and City agree to require SENCA to provide a Performance Bond to
guarantee completion of the Convention Center and a Labor and Material Bond
with respect to said Project, all in an amount equal to the estimated cost of
construction of the facility, naming City, Agency, and Developer as additional
insureds, and Agency will provide Developer with duplicate originals or
appropriate certificates evidencing such Bond. Said Bond may be provided by
SENCA by obtaining same from the General Contractor responsible for
construction of the improvements.
The Developer shall furnish or cause to be furnished to the Agency duplicate
originals or appropriate certificates evidencing a Performance Bond from
Developer or from the general contractor employed by Developer, for the
construction of the Hotel in an amount equal to the estimated cost of construction
of said facility, and evidencing a Labor and Material Bond in a similar amount,
guaranteeing construction of the Hotel and naming the City and Agency as
additionally insured. It is the intent of this provision that City and Agency
shall receive evidence of a single Performance Bond and Labor and Material
Bond with respect to the construction of the entire Hotel which will be provided
to it from all of the eleven developers collectively.
(308) City and Governmental Agency Permits
Before commencement of construction or development of any building, structures,
or, other work or improvement upon the Site, the Developer shall at its own
expense secure or cause to be secured any and all permits which may be required
by the City or any other governmental agency affected by such construction,
development or work. The Agency shall provide all proper assistance to the
Developer in securing these permits.
(309) Rights of Access
Representatives of the Agency and the City shall have the reasonable right
of access to the Site without charges or fees, at normal construction hours
during the period of construction for purposes of this Agreement, including
but not limited to the inspection of the work being performed in construction
of the improvements. Such representatives of the Agency or the City shall
be those who are so identified in writing by the Executive Director of the Agency
or the City Manager.
n
(310) Local, State and Federal Laws
The Developer shall carry out the construction of its improvements in conformity
with all applicable laws, including all applicable federal and state labor standards.
(311) Antidiscrimination During Construction
The Developer for itself and its successors and assigns, agrees that in the
construction of its improvements provided for in this Agreement, the Developer
will not discriminate against any employee or applicant for employment because
of race, color, religion, sex or national origin.
(312) Certificate of Completion and Certificate of Occupancy
Promptly after completion of all construction and development to be
accomplished by the Developer upon the Site, or any portion thereof, the Agency
shall furnish the Developer with a Certificate of Completion upon written request
by the Developer, and the City shall furnish the Developer with a Certificate
of Occupancy. Agency and City shall not unreasonably withhold any such
Certificates. A Certificate of Completion shall be, and shall so state, conclusive
determination of satisfactory completion required by this Agreement upon the
Site, and full compliance with the terms hereof with respect to the Site. Such
certificates may also be obtained by Developer for portions of the improvements
upon the Site as they are properly completed and ready for use, if Developer
is not in default under this Agreement. After issuance of such Certificates,
any party then owning or thereafter purchasing, leasing or otherwise acquiring
any interest therein shall not (because of such ownership, purchase, lease or
acquisition), incur any obligation or liability under this Agreement, except that
such party shall be bound by any covenants contained in the deed, lease, mortgage,
deed of trust, contract or other instrument of transfer in accordance with the
provisions of Sections 401 and 402 of this Agreement. Neither the Agency nor
any other person, after issuance of such certificates, shall have any rights,
remedies or controls that it would otherwise have or be entitled to exercise
under this Agreement as a result of a default in or breach of any provision of
this Agreement.
A Certificate of Completion of construction for the entire improvement and
development of the Site shall be in such form as to permit it to be recorded
in the Recorder's Office of Riverside County. Certificates of completion of
construction for less than the complete improvement and development of the
Site shall not be recorded.
If such Certificates of Completion and/or occupancy are not furnished with
respect to any portion of the Project after written request from the developer,
the appropriate public agency shall, within ten (10) days of the written request,
provide the Developer with a written statement of the reasons for refusal or
failure to furnish such Certificate or Certificates. The statement shall also
contain a statement of the action which developer must take to obtain the
Certificate. If refusal by the Agency is confined to the immediate availability
of specific items of materials for landscaping or fine arts, the Agency will issue
its Certificate upon the posting of a bond by the Developer with the Agency
in the amount representing a fair value of the work not yet completed. If the
Agency shall have failed to provide such written statement within said 10-day
period, the Developer shall be deemed entitled to the Certificate of Completion.
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Such Certificates shall not constitute evidence of compliance with or satisfaction
of any obligation of the developer to any holder of a mortgage, or any insurer
of a mortgage securing money loaned to finance the improvements, or any part
thereof. Such Certificates shall not constitute notice of completion as referred
to in the California Civil Code, Section 3093.
IV. USE OF THE SITE
(400) Uses
The Developer covenants and agrees for itself, its successors, its assigns and
every successor in interest that during construction and thereafter, such
successors and such assignees shall devote the Site to the uses specified in the
Redevelopment Plan, the ground lease and all relevant subleases, and this
Agreement.
(401) Obligation to Refrain from Discrimination
There shall be no discrimination or segregation of any person, or group of persons,
on account of sex, race, color, creed, religion, marital status, national origin
or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Site, nor shall the developer 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
Site.
(402) Form of Nondiscrimination and Nonsegregation Clauses
The Developer shall refrain from restricting the rental, sale or lease of the
Site on the basis of sex, race, color, creed, ancestry or national origin of any
person. All such deeds, leases, or contracts shall contain or be subject to
substantially the following nondiscrimination or nonsegregation clauses:
1. In deeds: "The grantee herein covenants by and for himself, his heirs,
executors, administrators 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, race,
color, creed, religion, marital status, national origin or ancestry in
the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment
of the land herein conveyed, nor shall the grantee 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 in the land herein conveyed. The
foregoing covenants shall run with the land."
2. In leases: "The lessee herein covenants by and for himself, his heirs,
executors, administrators and assigns, and all persons claiming under
or through him, 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, race, color, creed, religion,
marital status, national origin or ancestry, in the leasing, subleasing,
transferring, use or enjoyment of the land herein leased nor shall the
lessee
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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, sublessees, subtenants, 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, race, color, creed,
religion, marital status, national origin or ancestry, 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, sublessees, subtenants, or vendees
of the land."
(403) Effect and Duration of Covenants
Except as otherwise provided, the covenants contained in this Agreement and
the deeds shall remain in effect during the life of the Ground Lease referred
to above. The covenants against discrimination, however, shall remain in effect
in perpetuity.
V. DEFAULTS, REMEDIES AND TERMINATION
(500) Defaults - General
Subject to the extensions of time set forth in Section 603, 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 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.
The injured party shall give written notice of default to the party in default,
specifying the default complained of by the injured party. Except as required
to protect against further damages, and except as otherwise expressly provided
in Sections 505 and 506 of this Agreement, the injured party may not institute
proceedings against the party in default until 30 days after giving such notice.
Failure or delay in giving such notice shall not constitute a waiver of any default,
nor shall it change the time of default.
Except as otherwise expressly provided in this Agreement, any failure or delay
by either party in asserting any of its rights or remedies as to any default shall
not operate as a waiver of any default or of any such rights or remedies or deprive
either such 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.
(501) Institution of 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.
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Such legal actions must be instituted in the Superior Court of the County of
Riverside, State of California, in an appropriate Municipal Court in that County,
or in the appropriate Federal District Court servicing Riverside County.
(502) Applicable Law
The laws of the State of California shall govern the interpretation and
enforcement of this Agreement.
(503) Acceptance of Service of Process
In the event that any legal action is commenced by the Developer against the
City or the Agency, service of process upon the Agency shall be made by personal
service upon the Chairman or Secretary of the Agency and service of process
upon the City shall be made by personal service upon the City Clerk, or in such
other manner as may be provided by law.
In the event that any legal action is commenced by the City or the Agency
against the Developer, service of process on the Developer shall be made by
personal service upon the General Partner of the Developer or the designated
agent for service of process, or in such other manner as may be provided by
law, whether made within or without the State of California.
(504) Rights and Remedies are Cumulative
Except as otherwise expressly stated 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
time or different times, of any other rights or remedies for the same default
or any other default by the other party.
(505) Damages
If either the Developer or the City or Agency defaults with regard to any of
the provisions of this Agreement, the nondefaulting party or parties shall serve
written notice of such default upon the defaulting party. If the default is not
cured or commenced to be cured by the defaulting party within thirty (30) days
after service of the notice of default, or if, after commencing to cure the default,
the defaulting party fails to prosecute the work diligently, the defaulting party
shall be liable to the other party for any damages caused by such default.
(506) Specific Performance
If either the Developer or the city or Agency defaults under any of the provisions
of this Agreement, the nondefaulting party shall serve written notice of such
default upon the defaulting party. If the default is not commenced to be cured
by the defaulting party within thirty (30) days of service of the notice of default,
or if, after commencing to cure the default, the defaulting party fails to
prosecute the work diligently, the nondefaulting party at its option may institute
an action for specific performance of the terms of this Agreement.
(507) Other Events of Default
It is contemplated that the parties hereto will enter into other agreements
relative to the financing of the project and the management of the convention
Center. Any provisions or remedies relative to default under such agreements
shall be governed by the terms and conditions of those specific agreements,
and any remedies provided therein shall be in addition to rights and remedies
provided for herein.
13
VI. GENERAL PROVISIONS
(600) Notices, Demands, and Communications Between the Parties
Formal notices, demands, and communications between the City and Agency
and the developer shall be sufficiently given if dispatched by registered or
certified mail, postage prepaid, return receipt requested, to the principal offices
of the City and Agency and the Developer, and one additional representative
of the Developer to be designated by the Developer in writing. Such written
notices, demands and communications may be sent in the same manner to such
other addresses as either party may from time-to-time designate by mail as
provided in this Section.
(601) Conflict of Interest
The Developer warrants that it has not paid nor given, and will not pay nor
give, any third person any money or other consideration for obtaining this
Agreement.
(602) Nonliability of Agency Officials and Employees
No member, official or employee of the City or agency shall be personally liable
to the Developer, or any successor in interest, in the event of any default or
breach by the City or Agency or for any amount which may become due to the
developer or successor or on any obligations under the terms of this Agreement.
(603) Enforced Delay: Extension of Times of Performance
In addition to 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; riots; floods; earthquakes; fires;
casualties; acts of God; acts of the public enemy; epidemics; quarantine
restrictions; freight embargoes; lack of transportation; governmental restrictions
or priority; litigation; unusually severe weather; inability to secure necessary
labor, materials or tools; delays of subcontractor or supplier; acts of the other
party; acts or failure to act of any public or governmental agency or entity
(except that act of the Agency or the City, or failure of the Agency or the
City to act, shall not excuse performance by the Agency or the City) 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
only be for the period of the enforced delay, which period shall commence to
run from the time of the commencement of the cause. If, however, notice
by the party claiming such extension is sent to the other party more than 30
days after the commencement of the cause, the period shall commence to run
only thirty (30) days prior to the giving of such notice. Times of performance
under this Agreement may also be extended by mutual agreement in writing
by the City and the Developer or Agency and the Developer.
(604) Approval by the Agency
Whenever this Agreement requires the City or Agency to approve any contract,
document, plan, specification, drawing or other matter, such approval shall
not be unreasonably withheld.
14
VII. OPERATION OF FACILITIES
(700) The parties contemplate that the Convention Center is being developed
for the primary purpose of attracting conferences and conventions to the City
which will maximize economic benefit. This primary purpose should be reflected
in the booking and pricing policies established for the Convention Center. These
established policies shall be frequently reviewed for the purpose of maintaining
the Convention Center's competitive position with respect to similar or
comparable facilities.
(701) It is agreed that the Convention Center shall be operated and maintained
as a "first class" facility. It is further agreed that all landscaped areas associated
with the Convention Center shall be maintained in a "first class" manner. The
operator of the facility shall assure this quality of operation and maintenance,
and City shall take all reasonable steps to enforce any such provision. For the
purpose of this document, "first class" shall mean that the original improvements
shall be of a high quality as measured by industry standards at the time of
construction, and shall be maintained in a physical state of repair which will
preserve the high quality of the original improvements.
(702) Developer agrees that the Headquarters Hotel shall be operated and
maintained as a "first class" facility. Lodging accommodations in the
Headquarters Hotel will be available on a twenty-four hour per day basis, twelve
months per year. Developer further agrees to maintain at all times, all
landscaped areas associated with the Hotel in a "first class" manner in accordance
with the property maintenance standards required by the ordinances of the
City of Palm Springs, and in accordance with industry standards for a first class
facility.
(703) It is expressly understood that the Headquarters Hotel shall receive
no exclusive rights to, nor preference in the use of, the Convention Center
facilities. As provided in the Second Installment Sales Agreement, all rules
and regulations governing the use and operation of the Convention Center shall
be subject to approval or veto by the City Council or its authorized
representatives, and the selection of the operator of the Convention Center,
or any change in such operator, shall be subject to the approval or veto of the
City Council or its authorized representatives. The City Council shall also
have the right to review the Operating Budget of the Convention Center, and
such Budget shall be subject to the approval or veto of the City Council or its
authorized representatives. All such approvals shall not be unreasonably withheld.
If the City Council or its authorized representatives fail to approve the budget
by the commencement of the City's fiscal year, then the preceding year's budget
shall remain in effect until the parties can agree upon an appropriate adjustment
to the budget. The City may audit the books of the operator of the Convention
Center at reasonable times upon reasonable notice relative to establishment
of the operational subsidy.
(704) In connection with the operation of the Convention Center, the
Convention Center operators shall have the right to enter into contracts for
serving food or beverages within the Convention Center. Such contracts will
be arrived at based upon an open competitive bidding system which allows any
qualified hotel or licensed catering service the right to bid for the contract.
The Convention Center operator will, for and through such bidding process,
establish minimum qualifications for catering services in the Convention Center,
15
and will also establish policies for the service of alcoholic beverages in the
Convention Center. Such policy shall apply uniformly to all hotels or catering
services operating in the Convention Center. The City shall have the right
to approve or reject any such policies and contracts for cause, but may not
unreasonably withhold any such approval or unreasonably exercise any such
right of rejection. This right is reserved to the City since it is contemplated
that the City, pursuant to the financing documents, will provide a portion of
said financing by way of a Purchase Money Mortgage and because the City is
obligated to meet certain operational deficits of the Convention Center operation.
(705) Developer agrees not to discriminate against the City, other hotels
and/or local groups in making available for scheduling the Headquarters Hotel
banquet facilities, catering facilities and staff to service banquets for groups
or conventions which are booked into the Convention Center by the City or
the manager of the Convention Center facility, other hotels and/or local groups
planning such functions. It is understood that meal functions which occur in
the Headquarters Hotel shall be serviced by the Headquarters Hotel staff and
governed by the normal scheduling and pricing policies of the Headquarters
Hotel operator.
(706) The City or the manager of the Convention Center facility shall have
the right to levy a reasonable surcharge on gross sales, excluding taxes, of food
and beverages served in the Convention Center to groups using the Convention
Center. Such surcharge shall be levied uniformly and paid by the hotel or caterer
providing such food or beverage service to users of the Center.
(707) The City agrees to participate in on-going annual promotion and
marketing programs for the Convention Center. The City agrees that the annual
budget for such programs shall be commensurate with industry standards for
promotional activities of similar facilities.
(708) Developer agrees to provide an on-going promotion and marketing
program for the Headquarters Hotel which is commensurate with on-going
marketing of other similar facilities and consistent with its position as the
Headquarters Hotel for the Convention Center.
(709) The City or the manager of the Convention Center facility shall grant
to the Headquarters Hotel easements through the Convention Center for the
purpose of providing reasonable access to the Hotel and required exits, including
emergency exits, from the Hotel as may be required by the City Building and
Fire Safety Codes. Such access shall be reasonable to make the plan for operation
of the two facilities workable; provided, however, that such access shall not
preclude securing the Convention Center or access to the Hotel from the
Convention Center when the Convention Center is not in use.
(710) Developer shall grant to the City or the manager of the Convention
Center facilities, easements through the public areas of the Hotel to assure
reasonable access and exits for the Convention Center users whether or not
those users were booked by or through the (Headquarters Hotel. Exits to be
provided via these easements shall include emergency exits as required by City
Building and Fire Safety Codes. Such access shall be reasonable and sufficient
to make the plan for operation of the Convention Center and Headquarters
Hotel workable; provided, however, that it is understood that access to the
Hotel may be limited at certain times of the day as may be necessary to assure
the security of hotel guests.
16
(711) Should the Headquarters Hotel incur any deficits, regardless of the
cause of such deficits, the deficits shall be the sole responsibility of Developer
or the owners of the Hotel.
(712) The City and the Developer agree that the Convention Center and
the Headquarters Hotel shall share parking, open space, prefunction areas and
the secondary-service access located at their common wall, in their
"back-of-house," and along the western edge of the Site. Such sharing of
facilities shall be without charge to either party, and where necessary, in
accordance with mutually agreed upon scheduling policies. The sharing of parking
shall not absolve each facility from meeting the parking requirements established
for it by the City at the time of final plan approval.
If necessary, to satisfy the Headquarters Hotel parking requirement as established
by the Planned Development District approved by the City, the City will agree
to lease to the Hotel its parking spaces which are in excess of the parking
requirement for Phase I of the Convention Center. Payment under this lease
shall be at an annual rate not less than 8.5% of the value of the said spaces.
This leasing arrangement shall continue until such spaces are needed for Phase
lI of the Convention Center, at which time, SENCA agrees to provide the
deficient hotel parking spaces within 300 feet of the first Phase hotel property
line.
(713) In accordance with the concepts guiding the Planned Development,
Developer agrees to share certain facilities with the second phase hotel and
expanded Convention Center, when developed. When the second phase hotel
and expanded Convention Center are developed, both parties acknowledge their
understanding that the City will require the operators of the second phase
facilities to agree to share certain facilities with the first phase facilities.
Such planned facilities shall include shared use of tennis courts, parking and
open space. Such sharing shall not, however, result in an effective dilution
of the economic base of either hotel, and each facility must independently meet
the parking and open space requirements established by the City's Ordinances
or conditions for approval of the project.
(714) The City agrees to impose and maintain in full force a Special Use
Condition on the privately owned public championship golf course located
approximately one mile to the southeast of the Convention center. Such Special
Use Condition shall provide the Headquarters Hotel with the right to book
tournaments and make advance reservations for hotel guests as much as two
or more years in advance of the proposed playing time. This Special Use
Condition shall be an attachment to, and made a part of, this agreement between
Developer and the City. (Exhibit G)
(715) Should construction of the Cultural Center proceed, parking provided
for the Cultural Center shall be made available for shared use by the Convention
Center and the Headquarters Hotel. In accordance with the BIA's conditional
approval of the lease, however, this sharing shall be non-reciprocal in any way.
17
(716) The City agrees to explore the possibilities for the construction of
a cogeneration plant which will provide power for sale to the Convention Center
and the Headquarters Hotel. A response on the feasibility of such a power plant
shall be provided six months after both financing and operating agreements
for the Convention Center are in place. Should the City initiate an engineering
feasibility study, Developer agrees to work cooperatively with the engineer
engaged to complete that study to assure that the cogeneration plant can be
integrated into the design of the Convention Center/Headquarters Hotel Project.
(717) The City reserves the right to establish a surcharge fee for
communications services in the Convention Center which is commensurate
with industry standards for such services and is based upon a percentage of
gross sales for provision of special communications services for groups using
the Convention Center. Such surcharge will be placed only on those special
communications services which depend upon a fixed capital investment having
been made beyond that which is customary and planned in the approved project
Overview Document. The City agrees to grant Developer, or an affiliate thereof,
the right of first refusal to provide such equipment and services as part of a
separate agreement between the parties.
(718) The City agrees to continue to advance the funds which may be required
in advance of the project's bond financing in order to complete necessary portions
of the marketing studies, architectural work, survey, and appraisals related
to the Convention Center. It is understood, however, that all such funds advanced
by the City shall be reimbursed through the proceeds of the bonds upon
successfully securing financing for the project.
(719) Developer agrees to commence development of the Phase II Hotel
no later than the date that the initial Headquarters Hotel reaches an occupancy
rate of 70% for a period of two consecutive years, or when the Headquarters
Hotel reaches an occupancy rate of 72% for one year, whichever is sooner. The
second phase of the Convention Center will be developed by SENCA Palm Springs,
Inc. or its successor, concurrently with the Phase II Hotel. Construction of
these facilities will commence within eighteen (18) months of these starting
dates, provided City, at its sole discretion, determines to pay the debt services
required for Phase II of the Convention Center. Developer agrees to permit
easements and access to the City for development of Phase II of the Convention
Center.
(720) The City agrees in conjunction with any sale of the Convention Center
to the developer to require the Developer to execute an agreement for operation
of the facility with an entity or individual acceptable to the City and having
the demonstrated capability for operation of such a facility.
(721) Concurrently with its sale of the facility to the developer, the City
agrees to contract with the developer in its capacity as an owner of the
Convention Center, to provide the City with certain exclusive and/or preferential
rights as to the facility's use, including, although not necessarily limited to,
the City's right of first refusal for bookings eighteen (18) or more months in
advance of its use. Also, in return for Developer's payment of a Net Operating
Income Guarantee Fee to the City as prescribed in the Financing Documents,
the City agrees to annually pay the developer a contractual amount equal to
18
the amount of the facility's total annual operating deficit, if any. This subsidy
to the developer shall be the City's sole responsibility so long as such agreements
shall remain in force and shall not be violated by an action or failure to take
action by the Developer as therein required.
(722) The City has commissioned studies from the firms of Laventhol &
Horwath (completed 8/81), Touche-Ross & Company (completed 12/7/82) and
Williams-Kuebelbeck & Associates (completed tl/81) to establish the feasibility
of a Convention/Cultural Facility. Based upon these studies, the City issued
a Request for Proposals (RFP) seeking a Master Developer for the Convention
Center Project. Following a competitive selection process, this RFP resulted
in the City contracting with SENCA as described in Exhibit "B" to obtain the
services of the SENCA development team.
The City and Developer now reaffirm their respective commitments to the activities
and responsibilities outlined in the following documents:
Minute Order 3308, dated 11/2/83, approving a Cooperation Agreement with
SENCA, et.al. as Master Developer for the Convention Center District.
Resolution 14971, dated 3/7/84, approving a revised project site and Letter
of Understanding for the Palm Springs Convention/Cultural Center.
Resolution 15037, dated 5/2/84, approving the Convention Center District's
proposed first phase concept.
Resolution 15095, dated 6/6/84, approving a revised timetable.
Resolution 15096, dated 6/15/84, approving an Inducement Resolution for
$100,000,000 in project-related bond indebtedness.
Resolution 224, dated 6/19/84 (Community Redevelopment Agency), approving
a similar Inducement Resolution.
Resolution 15251, dated 6/27/84, approving a Project Overview Document and
authorizing the transmittal of the document to financial underwriters and other
interested parties.
(723) Developer agrees to execute an agreement for operation of the Headquarters
Hotel with an organization having the demonstrated capability for operation of such
a facility. SENCA has, with the City's approval, designated Doubletree Palm Springs,
Inc., a wholly owned subsidiary of Doubletree, Inc. ("Doubletree") as the initial operator
of the Headquarters Hotel. All possible successors to Doubletree shall have a comparable
level of experience and the documented financial capacity to assume the role of operator
of the Hotel. The City shall have the continuing right of approval of any change in
the Headquarters Hotel operator. Such approval shall be based upon comparability
to the original operator and such approval shall not be unreasonably withheld. Developer
further agrees that any agreement for operation of the Hotel will assure fulfillment
of all of Developer's responsibilities to the City with respect to operation of the
Headquarters Hotel.
(724) Due to the sharing of mechanical facilities between the Convention Center
and the Hotel, whenever reasonably possible, sub-meters will be installed in order to
calculate the cost of all utilities. If the installation of such sub-meters is not reasonably
possible, a formula will be agreed upon by the parties hereto to make such calculations.
19
(725) The parties hereto acknowledge and agree that the Reimbursement Agreement
with the banks furnishing the Letters of Credit contemplated by the Financing Documents
is not yet finalized and depends upon obtaining additional Letters of Credit or other
forms of credit enhancement. It is anticipated that these matters will be finalized
on or before December 15, 1984. These matters may require revisions to this Agreement
to conform with final terms of the Reimbursement Agreement. The parties, therefore,
agree that such Reimbursement Agreements shall be finalized no later than December
15, 1984 and that this Agreement shall be revised to conform thereto. If the parties
are unable to finalize the Reimbursement Agreement by that date, the parties may,
if they mutually so agree, extend this Agreement, otherwise this Agreement shall
terminate for all purposes.
,1984 CITY OF PALM SPRINGS, CALIFORNIA
By
Frank M. Bogert, Mayor
By
Norman R. King, City Manager
1984 COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
By
Frank M. Bogert, Chairman
By
Norman R. King, Secretary
1984 HOTEL & CONVENTION CENTER PARTNERS,
LTD., A CALIFORNIA LIMITED PARTNERSHIP
BY SENCA INVESTORS INC., A CALIFORNIA
CORPORATION, GENERAL PARTNER
By
Robert H. Shelton, President
,1984 SENCA
By
Robert H. Shelton, President
APPROVED BY THE CITY COUNCIL
BYRES". NO.
1 PPRTZWD F r , aid I VV.
Dc
AGENCY BY RES. e1Ft7.e�y.y �.?--—d
LIST OF EXHIBITS
EXHIBIT A: Description of the SENCA Development Team
EXNIBIT B: Cooperation Agreement between the City of Palm Springs
and SENCA
EXHIBIT C: Architectural Concept
EXHIBIT D: Project Description
EXHIBIT E: Project Scope of Work
EXHIBIT F: Project Schedule
EXHIBIT G: Special Use Condition for the privately owned golf course
EXHIBIT H: Guaranteed Maximum Price Contract
(Exhibits will be approved individually as they are completed. )
e.
FIRST SUPPLEMENT TO THE AMENDED
" 14 AND RESTATED DEVELOPMENT AGREEMENT
This First Supplement to the Amended and Restated Development Agreement (the
-Agreement") is made and entered into as of the 20th day of December, 1985 by and
r
en the City of Palm Springs, a municipal corporation (the "City"); the Community
Ytwe
?iedevelopment Agency of the City of Palm Springs (the "Agency"); the SENCA Palm
oint venture (the "Developer"), the joint venturers
Springs Project Joint Venture, a Texas j
which are Crow Palm Springs Inc., a Texas corporation; G&H Palm Springs Inc_., a Texas
corporation; and SENCA Investors Inc., a California corporation ("SENCA Investors");
Shale Energy Corporation of America, a Texas corporation ("Shale Energy"); SENCA/Palm
Springs Inc., a California corporation ("SENCA"); Hotel and Convention Center Partners -
xl Ltd., eleven California limited partnerships (collectively, the "Hotel Developer"); and
the City of Palm Springs Public Facilities Corporation (the "Corporation").
; r
f RECITALS
1. Pursuant to eleven (11) separate Amended and Restated Development Agree-
ments entered into effective as of December 31, 1984, as amended by Amendment No. 1
to the Amended and Restated Development Agreement for the Palm Springs Convention
y_ Center and Hotel dated November 6, 1985 (collectively, the "Development Agreement") by
and among the Agency, the Hotel Developer, the City and Shale Energy, it was agreed
among the foregoing parties to effectuate the Redevelopment Plan for the Palm Springs
Tahquitz Andreas District Redevelopment Project of the Agency by making provision for
•.wR• =-^ -, the acquisition of land and the financing and construction of a Convention Center the
"Convention Center") and a Headquarters Hotel (the "Hotel," the Convention Center and
the Hotel herein collectively called the "Project") near the Palm Springs central business
district.
aw.,.,Muoa,
2. Pursuant to the terms of the Agency Agreement, dated as of December 1, 19
85
r' (the "Agency Agreement"), the Corporation has appointed the City as its agent to carry
out all phases of supervision and construction of the Convention Center.
"
3. Pursuant to the terms of the Development Agreement, the City was to cause the
u Convention Center to be built pursuant to a construction agreement between the City and
•n .�.,,,4.,'. Shale Energy.
4 4. In connection with the Development Agreement, the Agency loaned to SENCA an
aggregate sum of $3,364,000.00 which, together with all accrued interest, will total
$3,543,662.94 as of December 31, 1984 (the "Agency Loan"). Of the total balance owing
on the Agency Loan, $591,459.36 relates to the Convention Center site (the "Convention
Center Loan Component" and the "Convention Center Site," respectively); $1,986,807.74
relates to the Headquarters Hotel site (the "Hotel Loan Component" and the "Hotel Site,"
respectively); and $965,395.84 relates to that certain land contiguous to the Hotel and
Convention Center sites (the "Phase It Loan Component" and the "Phase 11 Site,"
respectively).
5. The Developer desires to assume the rights and obligations of Shale Energy under
the Development Agreement which pertain to the Convention Center, and the City is
Willing to consent to such assumption, all upon and subject to the terms and provisions
contained herein.
Page 1 of 14
6. The City and the Developer desire to enter into this Agreement for the purpose
of evidencing such assumption and the City's consent thereto and to provide for certain
codifications and clarifications to the Development Agreement.
7. The City and the Hotel Developer desire to enter into this Agreement for the
purpose of clarifying certain provisions of the Development Agreement with respect to
}: the development and operation of the Hotel.
8. The City, Agency, Corporation, Developer and SENCA desire to enter into this
Agreement to provide for certain modifications to, and clarifications of, the Development
-.'::.
Agreement and the Agency Loan and to provide for the disposition of the Phase II Site and
repayment of the Phase 11 Loan Component.
h 9. This Agreement is made in contemplation of the redemption from escrowed funds
held by the Trustee of the 1984 Variable Rate Demand Certificates of Participation
(Convention Center Project), the issuance of the 1985 Certificates of Participation
(Convention Center Project) (the 111985 Certificates"), and the release from escrow of
It
funds held by the Trustee representing proceeds of the 1984. Variable Rate Demand
{' Certificates of Participation (Headquarters Hotel Projects I-XI) (the "Hotel Certificates"),
which transactions are collectively referred to herein as the "Closing."
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements contained herein, the City, the Agency, the Developer, the
Corporation, the Hotel Developer and SENCA hereby agree as follows:
AGREEMENTS
1. The Developer shall assume all of the rights, duties and obligations of Shale
' Energy under the Development Agreement to the extent and only to the extent that such
�':r gY P g Y
rights, duties and obligations pertain to the Convention Center, with the following
modifications and clarifications:
(a) Any reference in the Development Agreement to the Developer with
respect to the Convention Center and the Convention Center only shall be
q-, deemed to mean the Developer as defined herein.
(b) It is the intent of the City and the Developer that subsequent to the
execution of this Agreement and the obtaining of the financing for the
Convention Center, the Developer will produce plans, specifications and
working drawings (the "Plans") substantially consistent with the architectural
concept, project description and scope of work described in Exhibits C, D and
E attached to the Development Agreement. Notwithstanding any provision of
the Development Agreement (including Section (301)) to the contrary, the City
and the Developer hereby acknowledge and agree that the Plans are in the
preliminary stages of preparation and that preparation of final Plans will
require mutual effort and cooperation of the City and the Developer. The
Plans shall be subject to the reasonable review and approval of both the City
and the Agency, which approval shall not be unreasonably withheld or delayed.
Plans developed pursuant to this Agreement shall be the property of the City.
Concurrently with preparation of the Plans, the Developer shall cause a
budget to be prepared detailing the cost of developing and constructing the
Convention Center in accordance with the Plans, which cost shall include:
Page 2 of 14
s4;
..li.v+
(i) the construction cost of the Convention Center including contractor's
fee and contingency, furniture, fixtures and equipment and landscaping
and sitework (collectively, the "Construction Cost");
architectural, engineering and other professional fees (collectively,
the "Professional Fees");
(iii) fees payable to the Developer with respect to the Convention Center
("Development Fees");
(iv) Real Estate Taxes (herein so called); and
(v) All other costs and expenses to be incurred in connection with
development and construction of the Convention Center in accordance
� with the Plans ("Other Costs"); but which costs shall exclude each of the
following items as such items, having a cumulative budget totalling an
additional $4,180,000, are identified in the Preliminary Palm Springs
Convention Center Project Budget dated November 25, 1984:
(a) all Land Acquisition Expenses,
(b) all Working Capital Allowances and Initial Services Budgets,
(c) all City Permit Costs, Special Assessments and Fees;
(d) the reimbursement for all City costs incurred prior to Closing;
(e) the costs of any Presentations; and
(f) the cost of Title Insurance.
r ' Other Costs as used herein shall additionally exclude the increased
Facilities Acquisition and Construction Account budgets for the cost of
earthquake insurance during the construction period and for contingency
allowances to provide enhanced structural systems and reserves relating
to earthquake code compliance and other purposes as designated by the
'.' City. All exclusions from Other Costs as defined in this sub-paragraph
1(b)(v) are referred to herein as the "Supplemental Convention Center-
Budget."
The aggregate amount of the Construction Costs, the Professional Fees, the
Real Estate Taxes and the Other Costs shall be called the "Convention Center
Budget." The City and the Developer have mutually agreed to use their best
2 efforts to cause the Convention Center Budget (exclusive of the Supplemental
Convention Center Budget) to be an amount not exceeding $18,805,000;
provided, however, the Convention Center Budget shall be subject to the
reasonable review and approval of both the City and the Agency, which
approval shall not be unreasonably withheld or delayed. While the entire cost
and expense of developing and constructing the Convention Center shall be
borne by the Corporation, the Developer shall exercise its best efforts to cause
the Convention Center to be developed and constructed (exclusive of the
Supplemental Convention Center Budget) for an amount not to exceed the
Convention Center Budget, which efforts shall include but not be limited to
negotiating for and on behalf of the City one or more construction contracts
Page 3 of 14
whereby the contractor(s) (selected by the Developer with the approval of the 0'
City not to be unreasonably withheld) shall be obligated to the City to
construct, furnish and equip the Convention Center ("Construction Contracts")
for an amount not to exceed the portion of the Convention Center Budget
allocated to the Construction Cost ("Guaranteed Maximum Cost Construction
Contract"). To the extent that the Convention Center Budget (exclusive of the
Supplemental Convention Center Budget) based upon the Plans may differ from
$18,805,000, the City in its sole discretion, may require the Developer to W
revise the Plans in order to achieve such Convention Center Budget amount or
(ii) agree that such difference from $18,805,000, if greater than $18,805,000,
will be paid by the City; or if less than $18,805,000, will be applied to pre-pay
outstanding Certificates or be otherwise applied as the City shall subsequently 4
direct. Following approval of the Plans and the Convention Center Budget, no
modification to either may be made without the approval of both the City and
the Developer. The Developer shall be under no obligation to approve any
.4 modification to the Plans which results in an increase in the Convention
Center Budget unless the City has demonstrated to the Developer reasonable
satisfaction that the City has funds available and committed to development
and construction of the Convention Center (including otherwise uncommitted f
funds contained within the Supplemental Convention Center Budget) with
which to pay such increased costs.
y is
! (c) It is agreed that all Construction Contracts shall be executed by both
$ the Developer and the City, and shall contain a provision to the effect that
#_ funds for payments under the Construction Contracts will be disbursed by the
Trustee under the Trust Agreement for the 1985 Certificates pursuant to
requisitions by the City.
ii
(d) Developer agrees that a Guaranteed Maximum Cost Construction
Contract will be executed by the later of W May 30, 1986 or (ii) 90 days prior
to the date required for execution of such contract pursuant to the Trust
Agreement for the 1985 Certificates. In the event a Guaranteed Maximum
Cost Construction Contract is not executed by said date, the City shall have
the right to terminate this Agreement without liability for the Convention
Center Developer Fee (hereinafter defined) thereafter payable pursuant to
Paragraph 2 hereof. The City and Developer each agree to exercise their
reasonable best efforts to cause the Construction Contract to be executed by
the time herein required but agree that any failure by the City in that respect
will not abrogate its right of termination hereunder.
(e) Notwithstanding any provision of the Development Agreement
(including (i) the first paragraph of Section (303), (ii) the last two sentences of
the second paragraph of Section (304) and (iii) the fourth paragraph of Section
(304)) to the contrary, the Developer's obligation to the City with respect to
the development and construction of the Convention Center and the cost of
such development and construction shall be as set forth in sub-paragraphs 1(b),
l(c) and 1(d) of this Agreement.
(f) The cost of the insurance described in Section (306) of the
Development Agreement shall be included in the Supplemental Convention
Center Budget and shall be a cost of developing and constructing the
Convention Center to be paid by the City. Developer will investigate whether
its owner-controlled insurance program will be available for the Convention
Center.
Page 4 of 14
w 0
(g) Section (307) of the Development Agreement is hereby modified to
provide that the requirement that the Developer provide a performance bond
to guarantee completion of the Convention Center and a labor and material
payment bond with respect to the Convention Center may be waived at the
Developer's request and with the City's approval.
2. Development fees in the aggregate amount of $990,000 are payable with respect
to the Convention Center (the "Convention Center Development Feel The Convention
Center Development Fee shall be paid to the Developer (or to any person or entity
designated by the Developer) as follows: $464,667 at Closing; $262,667 upon execution of
the Guaranteed Maximum Cost Construction Contract; and $262,667 (less a retainer of
$26,266 to be paid upon issuance of a Certificate of Occupancy) payable coincident with
the construction draws in each case in an amount proportionate to the ratio of the amount
of the current construction draw to the maximum guaranteed construction price.
3. The City hereby consents to the assumption by Developer of Shale Energy's
rights, duties and obligations under the Development Agreement which pertain to the
Convention Center as hereby modified and clarified.
4. It is expressly understood and agreed by and between the City and the Developer
that the obligations of the Developer set forth herein and in the Development Agreement
are expressly limited to the development of the Convention Center and to the disposition
of the Agency Loan. Nothing in this Agreement, however, is intended to diminish any
obligation of the Hotel Developer under the Development Agreement with respect to the
Hotel.
:; rl
5. Notwithstanding any provision (including the third paragraph of Section (304) and
Article VII) of the Development Agreement to the contrary, the City and the Hotel
Developer acknowledge and agree that the operation of the Hotel and the Convention
Center and the sharing of any party walls, mechanical and other facilities and reciprocal
access between the two projects shall be governed by a reciprocal easement and operating
agreement to be approved and entered into by and between the City and the Hotel
Developer subsequent to the execution and delivery of this Agreement.
6. The City hereby approves Wyndham Hotel Company, a Texas corporation, as the
manager of the Hotel.
7. In connection with the Agency Loan, the parties hereby agree as follows: G
(a) At the Closing or as soon thereafter as funds become available for
such purpose pursuant to the terms of the Trust Agreement for the 1985
Certificates, the Corporation or the City shall pay to the Agency $591,459.36
from the proceeds of the 1985 Certificates. At the Closing, the Hotel
Developer shall pay to the Agency an aggregate sum of $1,986,807.74 from the
aggregate proceeds of the Hotel Certificates. In consideration of the
foregoing, at the Closing, the Agency agrees to release Lots 1 and 2 and A
through E inclusive of Tract No. 20485 as per Map recorded in Book 147, pages
55 and 56 and Maps in the Riverside County Recorder's Office from the
Leasehold Deed of Trust evidencing the Agency Loan;
(b) At the Closing, the Developer shall through SENCA additionally pay
to the Agency $565,395.84 representing partial payment of the then remaining
outstanding balance of the Agency Loan, together with $55,019.10 to the
Riverside County Tax Assessor as payment of the 1985-1986 Property Tax
Page 5 of 14
�i 1
•
obligations relating to the Phase II Site, whereupon the Agency shall modify
and extend the Promissory Note and shall further modify the Leasehold Deed
of Trust evidencing the Agency Loan to provide that the interest on the
$400,000 remaining unpaid balance shall thereafter accrue as hereinafter
provided on an annual compounding basis at twelve percent (12%) per annum
through its extended date of final maturity on June 1, 1991 (the "Loan
Extension");
(c) After the Closing, all Property Taxes with respect to the Phase II Site
will be assessed against, and be payable by, the then holder of the Phase II
Site, as hereinafter set forth;
(d) On or before May 1, 1986, the Developer shall advise the Agency in
writingof its decision either (i) to decline to develop Phase fI Site and to
thereby surrender its development rights with respect to the Phase II Site as
hereinafter set forth; or in the alternative, GO to pay the remaining balance
due pursuant to the Loan Extension, in which event the Loan Extension will
mature and be due in full, together with accrued interest thereon, on May 30,
1986;
(e) If on or before May 1, 1986, the Developer has notified the Agency of
its decision not to develop the Phase II Site, the City and Agency shall
designate SENCA as the developer of the Phase II Site, provided that SENCA
shall on or before June 1, 1986 have provided proof to the City and the Agency
of its prior payments of $210,000 to Crow Palm Springs Inc., and of $52,500 to
G&H Palm Springs Inc., in accordance with the terms of the Assignment of Net
Proceeds Agreement by and between the Venturers of the Developer; and
further provided that the City and the Agency shall have received proof from
the Developer that concurrent with such payments by SENCA, the SENCA
Group and each of them were relieved of their covenants not to compete as
these covenants evidenced in the Certificate and Agreement by and between
the Venturers of the Developer pertain to development of the Phase II Site. In
this event, the City and the Agency shall further amend the Loan Extension to
provide that such loan shall mature and be due in full, together with accrued
interest thereon, on June 1, 1991.
(f) In the event SENCA repays the full principal amount of the Loan
Extension on or prior to June 1, 1989, all interest payable by SENCA with
respect thereto will be forgiven and the Agency will return the cancelled Loan
Extension Promissory Note upon payment of the $400,000 principal amount
thereof;
(g) In the event the Loan Extension is not prepaid pursuant to paragraph
(f) above, the Loan Extension will mature and be due in full on June 1, 1991,
including all accrued interest thereon.
8. The Developer acknowledges that this Agreement is subject to, and governed by
the terms of the Agency Agreement, as attached hereto in draft form dated December 19,
1985.
9. All terms used in this Agreement with the initial letters capitalized and not
otherwise defined herein shall have the meaning ascribed to such terms in the
Development Agreement, the Trust Agreement for the 1985 Certificates or the Trust
Agreement for the Hotel Certificates.
Page 6 of 14
10. If and to the extent that any provision of the Development Agreement should in
any manner conflict or otherwise be inconsistent with this Agreement, this Agreement
shall prevail.
I-1
11. This Agreement may be executed in separate counterparts, each of which shall
} be an original of this Agreement and both of which, taken together, will constitute the
entire Agreement between the parties hereto. 2
IN WITNE55 WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their respective officers and authorized representatives
thereunto duly authorized as of the date first above written.
CITY OF PALM SPRINGS, CALIFORNIA
i
By
Mayor
By
City Manager
PALM SPRINGS PROJECT JOINT VENTURE,
A Texas Joint Venture
By: Crow Palm Springs, Inc.
a Texas Corporation
Managing Venturer P
I �
' !e
By i
P ent �' .�
j
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
it
By
Chairman
v
By
Secretary
�11
Page 7 of 14
r,
r
HOTEL AND CONVENTION CENTER
PARTNERS 1, LTD.
a California Limited Partnership
By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
'9
By
' x Pres t
a
t
i
HOTEL AND CONVENTION CENTER
PARTNERS I1, LTD.
a California Limited Partnership
By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd. 7
a Texas limited partnership
Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
Y
of
By
Pr si nt
i
i
Page 8 of 14
.qae
HOTEL AND CONVENTION CENTER
PARTNERS III, LTD.
a California Limited Partnership
By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
By
Ptret
HOTEL AND CONVENTION CENTER
PARTNERS IV, LTD.
a California Limited Partnership
By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
w,
Its General Partner
By
si
Page 9 of 14
HOTEL AND CONVENTION CENTER
PARTNERS V, LTD.
a California Limited Partnership
1
E
By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
By
Pre 'de t
HOTEL AND CONVENTION CENTER
PARTNERS VI, LTD.
a California Limited Partnership
By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
CW
a Texas limited partnership
Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
caw r
�TV,
r�
BY
—Prffde t
Page 10 of 14
HOTEL AND CONVENTION CENTER
PARTNERS VII, LTD.
a California Limited Partnership
By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
Its Managing Venturer
_ r By: Palm Springs Co.
a Texas Corporation
Its General Partner
BY
r si
HOTEL AND CONVENTION CENTER
PARTNERS VIII, LTD.
a California Limited Partnership
By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
Its Managing Venturer
By: Palm Springs Co.
Nry _ a Texas Corporation
its, General Partner
Ry^k{pn
By
I
Page 11 of 14
HOTEL AND CONVENTION CENTER
PARTNERS IX, LTD.
a California Limited Partnership
By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
r
6y
ent1
HOTEL AND CONVENTION CENTER
PARTNERS X, LTD.
a California Limited Partnership
By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
i.
By
de t
Page 12 of 14
'ANSI.. _
W
HOTEL AND CONVENTION CENTER
PARTNERS XI, LTD.
a California Limited Partnership
By: Palm Springs Hotel Joint Venture
a Texas joint venture
Its Sole General Partner
By: CPS Ltd.
a Texas limited partnership
_ Its Managing Venturer
By: Palm Springs Co.
a Texas Corporation
Its General Partner
By
Pre ' nt
CITY OF PALM SPRINGS
PUBLIC FACILITIES CORPORATION
By
President
SENCA/PAL SPRINGS,
a Calif a Corpora i
,r By /
President
SENCA INVES S, INC.
a Califor 'a orporati n
By
XPresident
Rp6
Rl}
irli y
Page 13 of 14
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