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HomeMy WebLinkAboutA3447 - SHADOWROCK VENTURES I Shadowrock Ventures - Trnsf & Indemnity re -wo parcels to POST, ultimtly to City Sec5&8 AGREEMENT#3447 TRANSFER AND INDEMNITY AGREEMENICM signed ,9-8-94 THIS TRANSFER AND INDEMNITY AGREEMENT (this "Agreement" ) between the City of Palm Springs ( "City" ) and Shadowrock Ventures, a California Joint Venture ( "Shadowrock" ) is entered into as of September , 1994 . R E: C I T A L S A. Shadowrock is the fee owner of that certain real property in the City of Palm Springs , County of Riverside, State of California legally described on Exhibit "A" attached hereto and incorporated herein be reference (the "Transfer Property" ) . B . Shadowrock desires to give as a gift to the City the Transfer Property. This transfer is not a condition imposed by the City upon the acquisition of any development rights requested by Shadowrock. C. The Transfer Property is currently subject to approximately $7, 200 . 00 in delinquent real property taxes due to a challenge by Shadowrock of the assessment evaluation by the County Assessor with respect to the Transfer Property. Due to this outstanding challenge, Shadowrock does not wish to pay these taxes as it will create problems in the challenge process but rather is willing to transfer the Transfer Property to the City subject to the delinquent real estate taxes together with an indemnity agreement respecting same which agreement will be secured by appropriate security as set forth herein. D. Parks, Open Space and Trails Foundation of Palm Springs, a California non-profit corporation ( "POST" ) is wholly owned by the City. The City desires that the Transfer Property be initially conveyed by Shadowrock to POST with the full understanding that the Transfer Property will be ultimately transferred to the City. NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS : 1. REQUIRED PERFORMANCE. Shadowrock shall convey the Transfer Property to POST in the form of the Grant Deed attached hereto as Exhibit "B" on or before September 30, 1994 subject only to title exceptions 2 and 4 through 8 , inclusive, as seat forth on that certain preliminary title report issued by First American Title Insurance Company no . 1919929 dated as of September 2 , 1994 ( "Approved Title Exceptions " ) . Shadowrock agrees to execute and deliver any documents reasonably required to effect the transfer contemplated herein. Within a reasonable time, POST shall convey the Transfer Property to the City whereupon the title insurance shall be issued Rsz\"57v114U841001� 113z"3.z U9/08/94 0 insuring the City subject to only the Approved Title Exceptions . The cost of the issuance of an ALTA (non extended coverage) title policy in favor of the City shall be prepaid by Shadowrock at the time of the conveyance of the Transfer Property to POST. Concurrently with the conveyance of the Transfer Property as set forth above, Shadowrock shall deliver to the City (i) the Letter of Credit in accordance with Section 2 , (ii) a fully executed copy of this Agreement , and (iii) evidence of the prepayment of the title insurance fees . 2 . INDEMNITY AND LETTER OF CREDIT. In the event that Shadowrock has paid or otherwise resolved the Delinquent Taxes in the manner specified herein not later than the earlier of . (i) three (3 ) years from the date of this Agreement, or (ii) six (6) months prior to any sale date under the Delinquent Taxes, ( "Performance Date" ) , then Shadowrock agrees to indemnify and hold the City, harmless from all of the delinquent real property taxes on Transfer Property to the extent of same as of the date of conveyance to the City plus any additional interest or penalties accrued thereon by the County Assessor' s Office ( "Performance Sum" ) . The Performance Date may be extended, in the sole discretion of the City by written agreement executed by the City Manager for a maximum additional period of six (6) months . As of the Performance Date and without further notice to Shadowrock, if Shadowrock has not paid or otherwise resolved the Delinquent Taxes and delivered sufficient evidence of same to the City by the Performance Date, then the City shall have the right to pay all the Delinquent Taxes to the County Assessor' s Office and to draw the entire sum under the Letter of Credit . Accordingly, any and all said funds drawn under the Letter of Credit or the Trust Funds (defined below) , if any, which may be in the possession of the City shall be owned and controlled by the City, shall become part of the general funds of the City and Shadowrock shall have no right, title or interest in said funds provided, however, that if the sums in the City' s possession is not sufficient to pay or otherwise reimburse the City for all the Delinquent Taxes, Shadowrock shall pay all such additional sums due to the City upon ten (10) days written demand delivered to Shadowrock. To assure its obligations under this Agreement, Shadowrock shall deliver concurrently with the Grant Deed an irrevocable letter of credit in the amount of TEN THOUSAND DOLLARS ($10 , 000 . 00) issued by a bank reasonably acceptable to the City in the form attached hereto as Exhibit "C" ( "Letter of Credit" ) . Upon payment of the Delinquent Taxes and delivery to City of reasonable evidence from the County Assessor' s Office evidencing such payment in the time and manner specified herein, City shall return the Letter of Credit to Shadowrock provided it has not been drawn upon as provided in this Agreement . Notwithstanding anything herein to the contrary, it is understood and agreed that at any FSS10s7\Ili dll%G-1111111�1172117 09/08/94 -2 - time within forth- five (45) days prior to the expiration of the Letter of Credit (or any replacement thereof) , City shall have the right (but not the obligation) to draw on the Letter of Credit , whether or not the Performance Sum is due under this Agreement . If the Performance Date has not yet occurred under this Agreement, City agrees to give fifteen ( 15) days prior written notice to Shadowrock prior to drawing on the Letter of Credit . If Shadowrock delivers to City within said fifteen (15) days a replacement letter of credit in exactly the same form as originally issued but with a new expiration date of not less than one (1) year, then City shall accept same and not draw on the Letter of Credit until the Performance Date or forty- five (45 ) days prior to the expiration of that Letter of Credit . Upon drawing on the Letter of Credit , all said monies shall be deposited in a special trust account to be held by the City until the Performance Date and said funds shall be invested in the Local Agency Investment Fund which is a special fund in the California State Treasury created under Government Code Section 16429 . 1 et seq. ( "Trust Fund" ) . Investment earnings on said monies shall be deposited into said trust account and become a part thereof . If for any reason (a) Shadowrock has not paid the Delinquent Taxes in the time and manner herein specified, (b) City has, for any reason, failed or otherwise been unable to draw on the Letter of Credit prior to its expiration, or (c) the amount received by the City from the Letter of Credit or otherwise is not sufficient to pay or reimburse City for all of the Delinquent Taxes, Shadowrock shall pay the amount of the Delinquent Taxes or any deficiency to the City within ten (10) business days of written demand from the City. If said amount is not paid to the City in the specified time, said sum shall thereafter bear interest at the rate of ten percent (100) per annum until paid. Provided that Shadowrock pays the Delinquent Taxes in the time and manner specified herein above and delivers reasonable evidence from the County Assessor' s office evidencing same, then the City shall promptly return to Shadowrock either the Letter of Credit, if still in effect, or the balance in the Trust Fund. 3 . MISCELLANEOUS. (a) Assignment . Neither party hereto shall assign any rights or obligations under this Agreement without the written consent of the other party. (b) Attornev' s Fees . In any action or proceeding between the parties hereto seeking enforcement or interpretation of any of the terms and provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to have and to recover from the other party its reasonable attorneys' fees . Attorneys ' fees shall include attorneys ' fees on any appeal . In addition a party entitled to attorneys' fees shall be entitled to FS2\053\0H084-OfiO1U113203.1 09/08/94 -3 - all other reasonable costs incurred in the litigation process . All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment . (c) Interpretation; Governing Law. This Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto, This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement . Titles and captions are for convenience only and shall not constitute a portion of this Agreement . As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others wherever and whenever the context so dictates . (d) No Waiver. No delay or omission by either party hereto in exercising any right or power accruing upon the compliance or failure of performance of this Agreement shall impair any such right or power or be construed to be a waiver thereof . A waiver by either party hereto of a breach of any of the covenants, conditions or agreements hereof to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions hereof . (e) Modifications_ Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made by written instrument or endorsement thereon and in each such instance executed on behalf of each party hereto. (f) Severabilitv.. If any term, provision, condition or covenant of this Agreement or the application thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this instrument, or the application of such term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. (g) Merger of Prior Agreements and Understandings ; Conflicts . This Agreement and other documents incorporated herein by reference contain the entire understanding between the parties relating to the transaction contemplated hereby and all prior or contemporaneous agreements , understandings, representations, and statements, oral or written, are merged herein and shall be of no further force or effect . (h) Successors . This Agreement shall be binding upon, and shall inure to the benefit of , each of the parties hereto and upon their respective successors, assigns and/or nominees . F52\05J\01411N¢IIINII\.'.IIJ20J.1 09/08/94 -4- • i ( i) Notices . Any notice which either party may desire to give to the other party must be in writing and may be given by personal delivery by reputable overnight courier or by mailing the same by registered or certified mail , return receipt requested, to the party to who, the notice is directed at the address of such party hereinafter set forth or such other address and to such other persons as the parties may hereafter designate : City: City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA. 92262 Attn: Director of Planning &Zoning Copy to: City of Palm Springs 3200 E . Tahquitz Canyon Way Palm Springs, CA. 92262 Attn: City Attorney Shadowrock: Shadowrock Ventures 620 Newport Center Drive llth Floor Newport Beach, CA 92660 Attn: Tony Ferrero Copy to: Shadowrock Ventures 64-515 Via Fermato Palm Springs, CA 92263 Attn. Mark A. Bragg (j ) Counterpart Execution. This Agreement may be executed in several counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart . (k) Exhibits . Exhibits "A" . "B" and "C" , attached hereto, are incorporated herein by reference. F32\I153\014084-(HMI\2113203.1 09/08/94 -5- r- Ent erFr iae= . Inc r 21 0= 10 P. 02 IN WITNESS WHEREOF, the parties have executed this Transfer and Indemnity Agreement so as to be effective as of the date first set forth above . Dated: rv��e �, 1994 ,.CITY" ATTEST: CITY OF PALM SPRINGS, a municipal corporation By: By: City Clerk City Manager APPROVED AS TO FORM: RUTAN & TUCKER By. / t David J. shire City Attorney "SHADOWROCK" SHADOWROCK VENTURES, a California Joint Venture By: Ferrero Properties, Ltd. , a California Limited Partnership, General Partner By: Ferrero Enterprises, Inc . , a California Corporation, GeZIA Pa ner gy Anthony rre President By: Mark Bragg, General Partner IN WITNESS WHEREOF, the parties have executed this Transfer and Indemnity Agreement so as to be effective as of the date first set forth above . L �/ Dated : „�L J 1994 "CITY" ATTEST: CITY GS, a municipal co oration By By: ty' erk Cit n APPROVED AS TO FORM: RUTAN & TUCKER By: David J. Aleshire City Attorney "SHADOWROCK" SHADOWROCK VENTURES, a California Joint Venture By: Ferrero Properties, Ltd. , a California Limited Partnership, General Partner By: Ferrero Enterprises , Inc . , a California Corporation, General Partner By: Anthony Ferrero, President By: Mark Bragg, neral Partner lu FS2W53u 14084-"nm\znazn3.: 09/09/94 -6- EXHIBIT "A" TRANSFER PROPERTY THE LAND REFERRED TO IN THIS REPORT IS SITUATED • IN THE UNINCORPORATED AREA OF THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: PARCEL A: ALL THAT PORTION OF SECTION 5, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN, LYING NORTHERLY AND NORTEWSSTERLY OF THE FOLLOWING DESCRIBED LINE: BEGINNING AT THE SOUTHWEST CORNER OF SAID SECTION 5; THENCE NORTH 00 2' 380 WEST 1450 .00 FEET ALONG THE WESTERLY LINE OF SAID SECTION 5 TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 300 00' EAST 500.00 FEET; THENCE SOUTH 600 00' EAST 1099.00 FEET; THENCE NORTH 900 00' EAST 149.00 FEET) THENCE NORTH 000 00' EAST 551.00 FEET; THENCE NORTH 150 00' EAST 1000.00 FEET; THENCE NORTE 400 00' BAST 800. 00 FEET; THENCE NORTH 900 00' EAST 400.00 FEET; THENCE SOUTH 450 00' EAST 800.00 FEET; THENCE NORTH 400 00' EAST 2100. 00 FEET; THENCE NORTH 900 00' EAST 830 .00 FEET, MORE OR LESS TS THE EAST LINE OF SAID SECTION 5 . PARCEL B: ALL THAT PORTION OF THE NORTH HALF OF SECTION 8, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN, LYING SOUTHERLY OF THE FOLLOWING DESCRIBED LINE: BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION 8; THENCE SOUTH 890 25' 00" WEST 1300 . 00 FEET ALONG THE NORTH LINE OF SAID SECTION; THENCE SOUTH 550 00' WEST 2000. 00 FEET; THENCE SOUTH 450 00' WEST 750.00 FEET; THENCE SOUTH 550 00' WEST 1050 .00 FEET; THENCE NORTE 900 00' WEST 250 .00 FEET; THENCE NORTH 450 00' WEST 1050.00 FEET, MORE OR LESS TO THE WEST LINE OF SAID SECTION S. f-'s2u053a1140e4-000i\-'u3203.1 09108iO4 EXHIBIT "All EXHIBIT "C" FORM OF LETTER OF CREDIT BANK Your Ref : Our Ref : Date : The City of Palm Springs 3200 E . Tahquitz Canyon Way Palm Springs, CA. 92262 Subject : Irrevocable Standby Letter of Credit No. Amount US $10 , 000 . 00 Gentlemen: We hereby establish our Irrevocable Standby Letter of Credit No. in your favor at the request of Shadowrock Ventures, a California Joint Venture, and/or Ferrero Properties, Ltd. , a California Limited Partnership ( "Customer" ) in the amount of $10 , 000 . 00 US (United States Dollars only) . The purpose of this Irrevocable Letter of Credit is to secure performance of certain obligations by Customer under that certain Transfer and Indemnity Agreement between City of Palm Springs and Shadowrock Venture. You are hereby authorized to draw on sight in the form of draft attached hereto as Exhibit "A" and incorporated herein by reference up to the sum of $10, 000 . 00 . It is a condition for payment of any draft drawn against this Irrevocable Letter of Credit that the draft be accompanied by a letter in the form of Exhibit °B" attached hereto and incorporated herein by reference signed by the Mayor of the City of Palm Springs ( "City" ) , any council member of the City Council or any person authorized by a resolution passed by the City. It is understood and agreed that the obligation of the undersigned under this Irrevocable Letter of Credit is an obligation to pay money only and that in no circumstances shall the undersigned be obligated to perform or cause to perform any of Customer' s actual obligations to you. This Irrevocable Standby Letter of Credit will expire on , 1995 . Vtl2U157\IIIJ118d-iwoiLIu22m 1 aemarea EXHIBIT "C" This Irrevocable Letter of Credit is subject to the uniform Customs and Practice for Documentary Credits, 1983 Revision, ICC Publicanion No . 400 . Yours Sincerely, FS21053\01411R4-000112113203 1 09/08/94 -2 - 0 0 EXHIBIT "B" TO LETTER OF CREDIT FORM OF LETTER To: Bank Gentlemen: Please be advised that the City of Palm Springs hereby certifies that it is entitled to draw $ under your Irrevocable Letter of Credit No. issued , 1994 in the City' s favor in the original sum of $10, 000 . 00 . THE CITY OF PALM SPRINGS Dated: By: Its : EXHIBIT "B" TO LETTER OF CREDIT FS2\053\0140N4-0101\2113203.1 09/08/94