HomeMy WebLinkAbout5/1/2002 - STAFF REPORTS (2) DATE: MAY 1, 2002
h TO: CITY COUNCIL
FROM: DIRECTOR OF COMMUNITY& ECONOMIC DEVELOPMENT
AGREEMENTS WITH MATHEW TALALA; ZACHARY FRANKS, ET AL; AND, THOMAS AND
EILEEN ADAMO FOR THE VOLUNTARY ACQUISITION OF THREE PROPERTIES IN THE 200
BLOCK OF SOUTH INDIAN CANYON DRIVE FOR THE PURPOSE OF CONSTRUCTING A CITY-
OWNED PARKING STRUCTURE (APN 513-154-034, 513-154-026, 513-154-008)
RECOMMENDATION:
That the City of Palm Springs approve Acquisition Agreements and Declarations Containing
Covenants, Codes, and Restrictions with the following parties: Mathew Talala, Zachary
Franks, et al, and Thomas and Eileen Adamo. These three agreements are part of the City's
land assembly for the purpose of constructing a downtown parking structure in the 200 block
of South Indian Canyon Drive.
BACKGROUND:
In March, 2002, the City received executed Acquisition Agreements from the above owners.
The purpose of the agreements was to allow the City to acquire the real property from the
owners at no cost, in return for long-term parking rights in the new structure. At an appraised
value of $25.00 per square foot for the land (the Adamo parcel was valued at $35.00 per
square foot because it has structures on it), the concept will save the City over$1 million in
land acquisition costs for the project.
A copy of each of the agreements is enclosed.
�Z!. ,
JOH S. RAY O D
Dir ctor of Com nity& Economic Development
Approve y—
City Manager C
Attachment
1. Resolutions (3)
2. Acquisition Agreement-Adamo
3. Declaration Containing Covenants, Codes & Restrictions-Adamo
4. Acquisition Agreement- Franks et al.
5. Declaration Containing Covenants, Codes & Restrictions - Franks et al.
6. Acquisition Agreement- Talala & C.H.I.C., LLC
7. Declaration Containing Covenants, Codes & Restrictions -Talala &C.H.I.C., LLC
C (6 " 6
AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND
INSTRUCTIONS (this "Agreement") is made this day of , 2002, by and between
the CITY OF PALM SPRINGS, a municipal corporation ("City"), and THOMAS A. ADAMO
AND EILEEN C. ADAMO ("Seller").
RECITALS:
A. The City desires to construct various parking improvements, including a multi-
level parking structure, within a site bounded by Palm Canyon Drive, Indian Canyon Drive,
Baristo Road and Arenas Road, and as more specifically shown as the "Site" on the "Site Plan"
attached hereto as Exhibit B and incorporated herein by this reference.
B. The parking improvements include reconstructing the surface parking to provide
approximately thirty-two (32) spaces and constructing a three (3) level parking structure with
approximately three hundred eighty (380) spaces. All of such improvements are collectively
referred to as the "Project" and are depicted in the "Plan of Improvement" attached as Exhibit C
and incorporated herein by this reference.
C. The Site is divided into various parcels, some of which will be developed with
surface parking and others which will be developed with the parking structure. Those parcels to
be acquired by the City are shown on the Site Plan (Exhibit B).
D. Some of the parcels to be acquired currently provide surface parking for the
businesses located on such parcels. In consideration for the property owner's conveyance of the
parcel or portion thereof necessary for the Project, the City will agree: (1) to construct the
Project, (2) to restrict a portion of the parking spaces as provided herein, and (3) to deem such
restricted parking as satisfying the property's obligation to provide parking for various
commercial uses pursuant to the zoning ordinance.
E. Seller is the current owner of real property currently being used for office and
multi-family residential apartments, located in the City of Palm Springs, County of Riverside,
bearing APN Number 513-154-026, consisting of approximately 3,563.25 square feet of
improved property, as more particularly shown in the"Parcel Map" as Parcel "E" in Exhibit"A,"
attached hereto and by this reference incorporated herein together with all improvements now or
hereafter constructed thereon ("Parcel E").
F. Seller is the current owner of real property and improvements commonly known
as the "Aloe People," located in the City of Palm Springs, County of Riverside, bearing APN
Number 513-154-025 (the "Aloe People Property"). The pertinent portion of the Aloe People
Property that is being conveyed to the City for the purposes of this Project consists of
approximately 1,565.5 square feet of improved property, as more particularly shown in the
"Parcel Map" as Parcel "F" and as described in the "Legal Descriptions" attached hereto as
Exhibit"A," and by this reference incorporated herein ("Parcel F").
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3. SCHEDULE OF PERFORMANCE.
3.1 Timing of Construction.
The Project will be undertaken in accordance with the Schedule of Performance (Exhibit
"E"). City shall use a regular public improvement bid process or design build process to cause
the Parking Structure, which is estimated to take six (6) months to construct, to be constructed in
the off-season. However, the process of designing the Parking Structure and awarding the
contract may not be concluded in time to allow construction to be commenced and completed in
the 2002 off-season. Accordingly, construction may only commence during the month of June in
2002 or 2003 (the "Commencement Dates"), except as otherwise provided in Section 3.4. City
shall make best efforts to commence construction during 2002, and to complete construction
prior to November 15 of any year in which construction is commenced. City will use reasonable
efforts to coordinate the concurrent closing on all parcels necessary to the Project in accordance
with Section 10, so that the Project can be constructed in accordance with the terms set forth
under Section 3.4, below.
3.2 Efforts to Minimize Business Disruption.
During the course of construction, the City will make best efforts to minimize business
disruption, but Seller understands that City must take all actions necessary to complete
construction prior to November 15 of the year in which construction is commenced. City will
maintain a reasonable pedestrian service: corridor to the back of Seller's building, but this service
corridor will not provide for vehicular access. During the period of Project construction, the
Seller, Seller's tenants and invitees will have no designated parking, but City will use reasonable
efforts to develop a temporary parking plan which will be sensitive to the parking deficiencies
which will exist during construction.
3.3 Waiver of Damages for Delay.
The City shall take reasonable and appropriate actions to ensure completion of the
Parking Structure within six (6) months of commencing construction. However, nothing herein
shall be construed as an express or implied guarantee as to the date of completion of the Parking
Structure, or subject the City or its officers, agents, assignees, and employees to damages,
including liquidated damages, damages for business disruption, or other damages, if the Parking
Structure is not completed in conformance with the timelines set forth in the Schedule (Exhibit
"E"
3.4 Failure to Timely Commence Construction.
Should City fail to commence construction by June 30, 2003 (except as provided herein),
or should City earlier abandon the Project prior to commencing construction then, within sixty
(60) days thereafter, this Agreement, including the Declaration, shall be automatically terminated
and, if closing has occurred, City shall reconvey the Parcel to Seller, except as provided in
Section 10. All rights and obligations which either party shall have hereunder, including to
exchange property, to construct parking improvements, to provide restricted parking areas, and
all other matters shall terminate and neither party shall have any right or liability against the
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other except: (i) City shall have the obligation to return the Parcel in the same condition it was
received, and (ii) this waiver of liability shall survive termination. Notwithstanding the
foregoing, the City may commence construction as much as thirty (30) days after the
Commencement Dates, so long as there is a reasonable expectation that the Project can timely be
completed prior to November 15.
4. COMPENSATION TO SELLER THROUGH ASSIGNMENT OF RESERVED
PARKING SPACES.
In consideration for the Parcel, the City agrees to allocate reserved parking to the Seller's
property for so long as the Parking Structure remains open and operating as provided herein and
subject to the provisions of the Declaration. The following allocations of reserved parking
spaces are based on the combined land value and in lieu fees previously paid by the Seller as
specifically set forth under Section 4.2, below.
4.1 Definition of"Reserved" Parking Spaces.
The parking spaces provided herein are "reserved" in the sense that a sign will be located
on a particular space as to indicate that the space is provided solely for the use of Seller, Seller's
business occupants or invitees. No gates or other access mechanisms will be provided to further
restrict parking access to reserved spaces on the first level of the Parking Structure, other than
the signs described above. It is understood that the Owner, at Owner's expense, may employ
parking attendants and valets in order to control usage of the parking spaces and provide valet
service, who will comply with all City rules and regulations governing the use of the Parking
Structure.
4.2 Specific Allotment of Reserved Parking to Seller's Property.
In consideration for the Assessment and for the Parcel, the Aloe People Property and the
Fisherman's Property will be provided with sixteen (16) reserved parking spaces, which are to be
provided on the City's surface parking lot adjacent to the-Pnrkirr, Strtie�m , as depicted in
"Parking Restriction Plan," (Exhibit D). 4:1 f hie,r yh p,H 's
4.3 No Assignment of Rights. Pro tee � y
The allocation of parking spaces described in Section 4.2, above, shall inure to the benefit
of the Owner, for the benefit of itself, its lessees, sublessees, business occupants and invitees;
provided, however, that Owner shall not sever or assign via lease agreement or otherwise, the
rights to the parking allocations as provided under Section 4.2 above, which shall be deemed to
run with the benefited parcel. Nothing herein shall restrict the Owner from assigning parking
space for the lessees and sublessees, business occupants and invitees of the Aloe People Property
and the Fisherman's Property.
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4.4 Restricted Parking and Zoning.
It is agreed between the parties that the restricted parking spaces shown in the Parking
Restriction Plan (Exhibit D) shall be considered to meet Seller's obligation to provide on-site
parking spaces under the Palm Springs Zoning Ordinance. In determining future uses of the
Seller's remaining property, the parking spaces provided in the Declaration shall be counted as if
they were still on-site spaces. Nothing herein shall prevent the City from amending its zoning
ordinance in the future concerning downtown parking or the manner in which parking
requirements are established or counted for future tenants, or to deny uses with insufficient
parking, but Seller shall be entitled to count the restricted spaces provided in the Declaration for
Seller's parcel as if they were on-site spaces.
5. WAIVER OF ADDITIONAL COMPENSATION OR DAMAGES.
Seller agrees to accept the consideration provided herein as full and complete
compensation for the value of the Parcel conveyed to City hereby. In this regard, Seller is aware
of the appraisal obtained by City and has had the right to consult other appraisers, attorneys and
other advisors of Seller's choosing. In executing this Agreement, Seller waives the right to
receive any other compensation for fixtures and equipment, business goodwill, severance,
inverse condemnation, pre-condemnation and all other elements of compensation whatsoever,
whether known or unknown.
Through execution of this Agreement, and with respect to compensation for conveyance
of the Restricted Parcel described above, Seller further waives, releases and forever discharges
claims both known and unknown as provided herein, Seller expressly waives any and all rights
under California Civil Code Section 1542, which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
With respect to the matters released hereunder, Seller waives and relinquishes any and all
rights and benefits which they have or may have under Section 1542 of the Civil Code of the
State of California. Seller acknowledges they are aware that it may hereafter discover facts in
addition to or different than those which they now know or believe to be true with respect to the
claims, allegations, events and facts set forth in the Recitals herein, but it is the Seller's intention
hereby to fully and finally release any and all matters, disputes, and differences, known or
unknown, suspected or unsuspected, which now exist, may exist, or heretofore have existed, as
against the each other, and in furtherance of this intention, the release herein given shall be and
remain in effect as a full and complete general release notwithstanding discovery or existence of
any such additional or different facts.
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Initials
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Notwithstanding the foregoing, the City shall pay for any necessary relocation expenses
for Parcel E only as of the date of execution of this Agreement in accordance with California
relocation law, including Government Code Sections 7260 et. seq., Title 25 of the California
Code of Regulations, Sections 6000 et. seq., and any and all City of Palm Springs' guidelines
and regulations enacted pursuant thereto. It is understood that this clause shall only apply to
Seller. The relocation costs are estimated to not exceed twenty-five thousand dollars ($25,000)
for Parcel E.
6. FINANCING AND ACQUISITION OF PARCELS.
6.1 Agreement Contingent on Financing.
This Agreement is contingent on the City's ability to obtain sufficient financing as to
finance the actual construction of the Parking Structure. The requisite financing which must be
obtained for the Project is currently estimated at over five million ($5,000,000) dollars. This
Agreement may be voided at the City's sole discretion, if the City is unable to reasonably obtain
financing at a sufficiently low rate as to ensure the feasibility of payment on such financing.
6.2 Acquisition of All Parcels.
This Agreement is contingent on the City obtaining title to all parcels necessary to
construct the Parking Structure. City cannot agree in advance of any public hearing on a
resolution of necessity to condemn any parcels. Accordingly, City retains fall rights to elect not
to proceed with the Project and not to exercise its powers of condemnation should any property
owner elect not to convey its parcel hereunder. Moreover, even should City be willing to
condemn, such legal action could introduce significant uncertainty to the financing due to the
costs of the legal action, delays, and risks of added expense.
6.3 No Damages for Inability to Obtain Financing.
The City shall investigate acquiring the parcels voluntarily and obtaining financing for
the Project in the amount specified in Section 6.1 above, or in another alternative amount
required to complete the Project; provided, however, that nothing herein shall be deemed to
create any expressed or implied obligation on the City, or its officials, agents, employees and
assignees to acquire the parcels or obtain financing, or subject the City, or its officials, agents,
employees and assignees to any damages to any Seller for delay, reliance, or obligations incurred
in anticipation or expectation that the Project would proceed as provided herein.
6.4 Termination.
In the event the contingencies provided in Sections 6.1 and 6.2 are not satisfied and the
City elects to terminate this Agreement, City will give written notice to Seller of its election to
terminate this Agreement. Such notice shall be given as soon as possible after City determines
that the contingency will not be met. In the event of such termination, the provisions of Section
3.4 shall apply.
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7. CONVEYANCE OF TITLE.
City shall administer the transaction and accomplish the exchange of title when all
documents have been properly executed and all conditions necessary for conveyance have been
satisfied, as provided herein. It is intended that conveyance occur as provided in Section 10, but
only when City is ready to proceed with construction of the Parking Structure. Title shall be fee
simple merchantable without lien or encumbrance, except those approved pursuant to Section 11.
8. PAYMENT OF PURCHASE PRICE.
Parcel E is valued at one hundred twenty-four thousand six hundred ($124,600) dollars
and Parcel F is valued at thirty-eight thousand seven hundred ($38,700) dollars. City's
obligation to pay the purchase price will be deemed satisfied by the completion of the Parking
Structure and recordation of the Declaration, subject to the provisions for termination contained
in Section 3.4.
9. ADDITIONAL FUNDS AND DOCUMENTS REQUIRED FROM THE CITY AND
SELLER AND CITY.
9.1 Seller.
Seller agrees that on or before 12:00 noon on the day preceding the Closing Date, Seller
will deposit with City (i) an executed and recordable grant deed ("Grant Deed") conveying the
Parcel to the City, (ii) an executed and recordable Declaration and (iii) such funds and other
items and instruments as may be necessary to comply with this Agreement. The City Clerk will
cause the Grant Deed and Declaration to be recorded when all conditions in Section 13 have
been satisfied and the Title Policy in the form described in Section 11 below can be issued; but in
no event after the date specified in Section 10 below.
9.2 City
City agrees that on or before 12:00 noon on the date preceding the Closing Date, City
will deposit all documents (executed and recorded) which are necessary to comply with the terms
of this Agreement.
10. CLOSING DATE.
A. Conveyance shall occur, if possible, within sixty (60) days following execution of
this Agreement, but no later than July 31, 2003 (the "Closing Date") except as provided in
Section 3.4. The term "Closing" is used herein to mean the time Seller's Grant Deed is filed for
recording in the Office of the County Recorder of Riverside County, California.
B. In the event all parcels are not in a condition to close by the Closing Date, the
City may delay the Closing Date until the conditions preventing closing have been satisfied, but
City shall not close on one parcel without being able to close on all parcels, unless City has
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C. In the event any other conditions precedent to conveyance as specified in Section
13 have not been timely satisfied, the City may delay the Closing Date until the conditions
preventing closing have been satisfied.
D. In the event that City notifies Seller of a desire to extend the Closing Date
pursuant to subsections B and C above, Seller may terminate this Agreement by giving written
notice to City, in which case the provisions of Section 3.4 shall apply.
E. In the event closing occurs during or before June 2002, but City is not able to
commence construction of the Parking Structure, then City shall lease the Parcel to Seller for
nominal rent with Seller responsible for all maintenance and liability until the City is prepared to
commence construction of the Parking Structure, as provided in Section 18.1.
11. TITLE POLICY.
11.1 Approval of Title.
Promptly following execution of this Agreement, City will obtain a preliminary
title report issued through First American Title Company (the "Title Company"),
describing the state of title of the Parcel, together with copies of all exceptions specified
therein and a map plotting al.l easements specified therein (the "Preliminary Title
Report"). The City shall notify Seller in writing ("The City's Title Notice") of the City's
approval of all matters contained in the Preliminary Title Report or of any objections the
City may have to title exceptions or other matters ("Disapproved Exceptions") contained
in the Preliminary Title Report within fifteen (15) days after the City's receipt of the
Preliminary Title Report. If the City fails to deliver the City's Title Notice within said
fifteen (15) day period, the City shall be conclusively deemed to have disapproved the
Preliminary Title Report and all matters shown therein.
(a) In the event the City delivers the City's Title Notice within said period,
Seller shall have a period of five; (5) days after receipt of the City's Title Notice in which
to notify the City of Seller's election to either (i) agree to attempt to remove the
Disapproved Exceptions prior to the Closing; or (ii) decline to remove any such
Disapproved Exceptions ("Seller's Notice"). Seller's failure to deliver Seller's Notice
within said five (5) day period shall be deemed Seller's election to decline to remove the
Disapproved Exceptions. If Seller notifies the City of its election to decline to remove
the Disapproved Exceptions, if Seller is deemed to have elected to decline to remove the
Disapproved Exceptions, or if Seller is unable to remove the Disapproved Exceptions, the
City may elect either to terminate this Agreement or to accept title to the Property subject
to the Disapproved Exception(s). The City shall exercise such election by delivery of
written notice to Seller within five (5) days following the earlier of(i) the date of written
advice from Seller that such Disapproved Exception(s) cannot be removed; or (ii) the
date Seller declines or is deemed to have declined to remove such Disapproved
Exception(s).
(b) Upon the issuance of any amendment or supplement to the Preliminary
Title Report which adds additional exceptions, the foregoing right of review and approval
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shall also apply to said amendment or supplement, provided, however, that the City's
initial period of review and approval or disapproval of any such additional exceptions
shall be limited to ten(10) days following receipt of notice of such additional exceptions.
(c) Nothing to the contrary herein withstanding, the City shall be deemed to
have automatically objected to all leases, deeds of trust, mortgages, judgment liens,
federal and state income tax liens, delinquent general and special real property taxes and
assessments and similar monetary encumbrances affecting the Parcel, and Seller shall
discharge any such non-permitted title matter of record prior to or concurrently with the
Closing.
11.2 Title Policy.
At the Closing, the City shall obtain a CLTA Owner's Policy of Title Insurance (the
"Title Policy") for the City's interest, wherein the Title Company shall insure that title to the
Parcel shall be vested in the City, containing no exception to such title which has not been
approved or waived by the City in accordance with this Section 11. The Title Policy shall
include any available title insurance, extended coverage or endorsements that the City has
reasonably requested.
11.3 Encumbrances After Title Approval.
Seller shall not record any liens or encumbrances against the Parcel after the Approval of
Title, as described in Section I1.1, above, without the prior approval by the City. If title is
encumbered after City has approved title without the approval of City, Seller shall bear all cost,
expense and liability for restoring title to the condition originally approved by City and for any
loss or expense to the Project therefore.
12. DUE DILIGENCE.
12.1 Due Diligence Date.
The "Due Diligence Date" shall mean the date which is forty-five (45) days following the
execution of this Agreement.
12.2 Scope of Due Diligence.
The City shall have the right to make an analysis of the Parcel consisting of such
engineering, feasibility studies, soils tests, environmental studies and other investigations as the
City in its sole discretion may desire, to permit the City to determine the suitability of the Parcel
for the City's contemplated uses and to conduct such other review and investigation which the
City deems appropriate to satisfy itself to acquire the Parcel. The City shall further have the
right to make an examination of all licenses, permits, authorizations, approvals and governmental
regulations which affect the Parcel, including zoning and land use issues and conditions imposed
upon the Parcel by governmental agencies.
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12.3 Review of Documents.
Upon the execution of this Agreement by both parties, Seller shall make available to the
City true, correct and complete copies of all contracts which relate to the Parcel (together with
any amendments or modifications thereto), and all reports in Seller's possession respecting the
physical condition of the Parcel, if arty, and any other information in Seller's possession or
control reasonably requested by the City regarding the Parcel.
12.4 Entry for Investigation.
(a) Subject to the conditions hereafter stated, Seller grants to the City, its
agents and employees a limited license to enter upon any portion of the Parcel for the
purpose of conducting engineering surveys, soil tests, investigations or other studies
reasonably necessary to evaluate the condition of the Parcel, which studies, surveys,
investigations and tests shall be done at the City's sole cost and expense.
(b) As a condition to the City's entry, inspection or testing, the City shall keep
the Parcel free and clear of all materialmen's liens, lis pendens and other liens arising out
of the entry and work performed under this Agreement. The City shall provide
reasonable notice to the Seller prior to entry for inspections or testing, and shall defend
and hold the Seller harmless from any liability claims, damages, or actions arising
therefrom.
12.5 Hazardous Materials.
To the best of Seller's knowledge, neither Seller nor any previous owner, tenant,
occupant, or user of the Parcel used, generated, released, discharged, stored, or disposed of any
hazardous waste, toxic substances, or related materials ("Hazardous Materials") on, under, in, or
about the Parcel, or transported any Hazardous Materials to or from the Parcel. Seller shall not
cause or permit the presence, use, generation, release, discharge, storage, or disposal of any
Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to
or from, the Parcel. The term "Hazardous Material" shall mean any substance, material or waste
which is or becomes regulated by any local governmental authority, the State of California, or
the United States Government, including, but not limited to, any material or substance which is
(i) defined as a"hazardous waste," "extremely hazardous waste," or"restricted hazardous waste"
under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California
Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined
as "hazardous substance" under Section 25316 of the California Health and Safety Code,
Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii)
defined as "hazardous material," "hazardous substance," or "hazardous waste" under Section
25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Material
Release Response Plans and Inventory), (iv) defined as "hazardous substance" under Section
25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage
of Hazardous Substances), (v) petroleum or any petroleum product or fraction thereof or additive
thereto, (vi) asbestos, (vii) polychlorinated byphenyls, (viii) listed or defined as "hazardous" or
"extremely hazardous" under the California Code of Regulations, including pursuant to Title 22
of Division 4.5, Chapter 11 thereof, (ix) designated as a "hazardous substances" pursuant to
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Section 311 of the Clean Water Act, (33 U.S.C. §1317), (x) defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et
seq. (42 U.S.C. §6903) or (xi) defined as a"hazardous substances" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et
sue. (42 U.S.C. §9601).
12.6 Compliance with Environmental Laws.
To the best of Seller's knowledge the Parcel complies with all applicable laws and
governmental regulations including, without limitation, all applicable federal, state, and local
laws pertaining to air and water quality, hazardous waste, waste disposal, and other
environmental matters, including, but not limited to, the Clean Water, Clean Air, Federal Water
Pollution Control, Solid Waste Disposal, Resource Conservation and Recovery and
Comprehensive Environmental Quality Act, and the rules, regulations, and ordinances of the
City within which the subject property is located, the California Department of Health Services,
the Regional Water Quality Control _Board, the State Water Resources Control Board, the
California Environmental Protection Agency, the U.S. Environmental Protection Agency, and all
applicable federal, state, and local agencies and bureaus.
12.7 Environmental Contingency.
The Closing shall be subject to and conditioned upon the City's approval of the
environmental conditions at, under and about the Parcel, and the absence from the Parcel of
Hazardous Materials and any other kind of soil or water contamination. The City may obtain a
Phase I and, if necessary, a Phase II Environmental Assessment Report, and may perform any
other testing the City deems necessary to determine whether the Parcel contains Hazardous
Materials or any other kind of contamination. City shall inform Seller of any contamination
discovered during the foregoing testing and either party may assume the cost of remediation, or
City may terminate this Agreement. If City closes without agreement from Seller to bear such
expense, then City shall be responsible for the cost of remediating any contamination known by
City to exist on the Parcel. Nothing herein waives any rights or causes of action City may have
against any party for remediating the cost of any contamination not known to City and
discovered after closing.
Notwithstanding anything to the contrary in this Agreement, the parties may agree to
extend the Closing if they deem it necessary to allow for the completion of environmental testing
and/or remediation of the Parcel.
12.8 Approval of Due Diligence Matters.
The City shall notify Seller in writing ("The City's Due Diligence Notice") on or before
the Due Diligence Date of the City's approval or disapproval of the condition of the Parcel and
the City's investigations with respect thereto (excluding title matters which are to be approved or
disapproved pursuant to Section 11.1 above), which approval may be withheld in the City's sole
and absolute discretion. The City's failure to deliver the City's Due Diligence Notice on or
before the Due Diligence Date shall be conclusively deemed the City's disapproval thereof. The
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City's disapproval or deemed disapproval of said matters shall automatically terminate this
Agreement.
13. CONDITIONS PRECEDENT TO CONVEYANCE.
13.1 Conditions to the City's Obligations.
The obligations of the City under this Agreement shall be subject to the satisfaction or
written waiver, in whole or in part, by the City of each of the following conditions precedent:
(a) Execution and delivery by Seller of Deed and Declaration.
(b) The City has approved in writing the condition to title and Title Company
will issue the Title Policy as required by Section 7 of this Agreement insuring title to the
Parcel vested in the City.
(c) The City has approved in writing all Due Diligence matters on or before
the Due Diligence Date.
(d) The City has obtained financing.
(e) The City has approved a construction contract for the Parking Structure.
(f) The City has entered acquisition agreements for all Parcels of the Site.
(g) Delivery to the City of the instruments and funds, if any, accruing to the
City pursuant to this Agreement.
13.2 Conditions to Seller's Obligations.
The obligations of Seller under this Agreement shall be subject to the satisfaction or
written waiver, in whole or in part, by Seller's delivery of the following pursuant to this
Agreement:
(a) Execution and delivery by City of Declaration.
(b) The City has approved in writing the condition to title and Title Company
will issue the Title Policy as required by Section 7 of this Agreement insuring title to the
Parcel vested in the City.
(c) City has approved in writing all Due Diligence matters on or before the
Due Diligence Date.
(d) Delivery to Seller of any temporary lease applicable until construction
commences.
(e) Delivery to the Seller of the instruments and funds, if any, accruing to the
Seller pursuant to this Agreement.
[Rv a19257 vs -12-
C ('a - 6- 13
14. REPRESENTATIONS AND WARRANTIES.
14.1 Representations and Warranties.
Seller hereby makes the following representations and warranties to the City, each of
which, to the best of Seller's knowledge, is true as of the date hereof and shall be true on the date
of Closing on the Parcel:
(a) Seller has received no notice and/or has no knowledge that any
governmental authority or any employee or agent thereof considers any construction of
the proposed improvements on the Parcel or the present or proposed operation, use or
ownership of the Parcel to violate or have violated any ordinance, rule, law, regulation or
order of any government or agency, body or subdivision thereof, or that any investigation
has been commenced or is contemplated respecting such possible violations.
(b) There are no contracts, leases, claims or rights affecting the Parcel and no
agreements entered into by or under Seller shall survive the Closing that would adversely
affect the City's rights with respect to the Parcel except as heretofore disclosed in writing
by Seller to the City.
(c) Seller has received no written notice from any third parties, prior owners
of the Parcel, or any federal, state or local governmental agency, indicating that any
hazardous waste remedial or clean-up work will be required on the Parcel.
(d) Until the Closing, Seller shall not do anything which would impair or
encumber Seller's title to any of the Parcel.
(e) All utilities, including gas, electricity, water, sewage, and telephone, are
available at the property line of the Parcel, and all such items are in good working order.
(f) Until the Closing, if Seller learns of any fact or condition which would
cause any of the warranties and representations in this Section not to be true as of the
Closing, Seller shall immediately give written notice of such fact or condition to the City.
(g) Seller has the power and authority to execute, deliver and perform Seller's
obligations under this Agreement and the documents executed and delivered by Seller
pursuant hereto.
15. GENERAL PROVISIONS FOR.CONVEYANCE.
15.1 General Provisions.
City Clerk shall deliver the Title Policy to the City and instruct the Riverside County
Recorder to mail the Grant Deed to the City at the address set forth in Section 18.5 after
recordation. All funds shall be administered by the City's Director of Finance and may be
deposited in the accounts of City with any bank doing business in Riverside County, California,
and shall be separately accounted from other City funds. All disbursements shall be made by
City check. This Agreement and any modifications, amendments, or supplements thereto may be
IRv N 19257 0 -13-
r
executed in counterparts and shall be valid and binding as if all of the parties' signatures were on
one document.
15.2 Proration of Real Property Taxes.
All nondelinquent general and special real property taxes shall be prorated to the Closing
on the basis of a thirty (30) day month and a three hundred sixty (360) day year. In the event that
property taxes are assessed on a parcel of real property which includes land other than the Parcel,
such proration shall include only taxes attributable to the Parcel, calculated in terms of total gross
square feet of land assessed pursuant to the tax statement versus total gross square footage of the
Parcel.
15.3 Payment of Costs.
The City shall pay documentary transfer taxes, the premium charges for the standard
CLTA Title Policy and any non-standard coverage requested by the City, the charges for
drawing and recording the Grant Deed and Declaration. Seller shall pay any fees and costs
charged by any lender or other entity to obtain reconveyances or otherwise put title in the
condition described in Section 7, and all costs necessary to satisfy any condition of due diligence
that Seller has agreed to satisfy. All other costs of Closing not otherwise specifically allocated
by this Agreement shall be paid by City.
15.4 Information Report.
The parties agree to cooperate with each other in completing any report ("Information
Report") and/or other information required to be delivered to the Internal Revenue Service
pursuant to Internal Revenue Code Section 6045(e) regarding the real estate sales transaction
contemplated by this Agreement, including without limitation, Internal Revenue Service Form
1099-B as such may be hereinafter modified or amended by the Internal Revenue Service, or as
may be required pursuant to any regulation now or hereinafter promulgated by the Treasury
Department with respect thereto. The City and Seller also agree that the City and Seller, their
respective employees and attorneys, and may disclose to the Internal Revenue Service, whether
pursuant to such Information Report or otherwise, any information regarding this Agreement or
the transactions contemplated herein as such party reasonably deems to be required to be
disclosed to the Internal Revenue Service by such party pursuant to Internal Revenue Code
Section 6045(e), and further agree that neither the City nor Seller shall seek to hold any such
party liable for the disclosure to the Internal Revenue Service of any such information.
16. BROKERAGE COMMISSIONS.
The City and Seller each represent and warrant to the other that no third party is entitled
to a broker's commission and/or finder's fee with respect to the transaction contemplated by this
Agreement. The City and Seller each agree to indemnify and hold the other parties harmless
from and against all liabilities, costs, damages and expenses, including, without limitation,
attorneys' fees, resulting from any claims or fees or commissions, based upon agreements by it, if
any, to pay a broker's commission and/or finder's fee.
IRV 4 19257 v5 -14-
17. RISK OF PHYSICAL LOSS.
Risk of physical loss to the Parcel shall be borne by Seller prior to the transfer of
possession or title and by the City thereafter. In the event that the Parcel shall be damaged by
fire, flood, earthquake or other casualty the City shall have the option to terminate this
Agreement, provided notice of such termination is delivered to Seller within twenty (20) days
following the date the City learns of the occurrence of such casualty. If the City fails to
terminate this Agreement pursuant to the foregoing sentence within said twenty (20) day period,
the City shall complete the acquisition of the Parcel, in which case Seller shall assign to the City
the interest of Seller in all insurance proceeds relating to such damage (subject to the rights of
tenants under leases of the Parcel). Seller shall consult with the City regarding any proposed
settlement with the insurer and the City shall have the reasonable right of approval thereof.
Seller shall hold such proceeds until the Closing. In the event this Agreement is terminated for
any reason, the City shall have no right to any insurance proceeds.
18. MISCELLANEOUS.
18.1 Possession.
Possession of the Parcel shall be delivered to the City at the close,provided that if for any
reason construction of the Parking Structure will not commence immediately after such closing,
Seller shall, through a lease with the City, retain possession with the right to use and maintain the
Parcel for parking after delivery of title and until commencement of construction, without
liability to City, until City gives written notice of the date of actual commencement of
construction, which date shall then be the date of transfer of possession.
18.2 No Conflict of Interest.
No officer or employee of the City shall have any financial interest, direct or indirect, in
this Agreement nor shall any such officer or employee participate in any decision relating to the
Agreement which effects his financial interest or the financial interest of any corporation,
partnership or association in which he is, directly or indirectly, interested, in violation of any
State statute or regulation. The Seller warrants that it has not paid or given and will not pay or
give any third party, other than Seller's real estate broker, any money or other consideration for
obtaining this Agreement.
18.3 Assignment.
Neither parry shall have the right to assign this Agreement or any interest or right
hereunder without the prior written consent of the other party. Subject to the foregoing, this
Agreement shall be binding upon and shall inure to the benefit of the City and Seller and their
respective heirs, personal representatives, successors and assigns. The Seller shall have the right
to sell the Aloe People Property and the Fisherman's Property and assign the rights and
obligations under the Agreement to its purchaser.
IRV#19257 v5 -15- Y
18.4 Attorneys' Fees.
In any action between the parties hereto, seeking enforcement of any of the terms and
provisions of this Agreement, or in connection with the Parcel, the prevailing party in such
action shall be entitled, to have and to recover from the other party its reasonable attorney's fees
and other reasonable expenses in connection with such action or proceeding, in addition to its
recoverable court costs.
18.5 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 or by mailing the same by registered or certified mail, return
receipt requested, to the party to whom 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:
To Seller: Thomas and Eileen Adamo 1
67&2 ? S. 4A60H-4
C 4TNED&
To The City: Palm Springs Redevelopment Agency
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attention: Executive Director
Copy To: Burke, Williams & Sorensen, LLP
18301 Von Karman Avenue
Suite 1050
Irvine, CA 92612
Attn: David J. Aleshire, Esq.
18.6 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 neutral gender and the singular or plural number shall each
be deemed to include the others wherever and whenever the context so dictates.
18.7 No Waiver.
No delay or omission by either party hereto in exercising any right or power accruing
upon the compliance or failure of performance by the other party hereto under the provisions 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
IRV 419257 v5 -16-
^///
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.
18.8 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.
18.9 Severability.
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 tern, provisions, 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.
18.10 Merger of Prior Agreements and Understandings.
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 to
contemporaneous agreements, understandings, representations and statements, oral or written,
are merged herein and shall be of no further force or effect.
18.11 No Withholding Because Non-Foreign Seller.
Seller represents and warrants to the City that Seller is not, and as of the Closing will not
be, a foreign person within the meaning of Internal Revenue Code Section 1445 or an out-of-
state seller under California Revenue and Tax Code Section 18662 and that it will deliver to the
City on or before the Closing a non-foreign affidavit on standard form pursuant to Internal
Revenue Code Section 1445(b)(2) and the Regulations promulgated thereunder and a California
Form 590-RE.
18.12 Execution in Counterparts.
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.
[Signature Page Follows:l
Ixvui9zszvs -17-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement for Purchase
and Sale of Real Property and Instructions as of the date set forth above.
"SELLER" Mr. T40MAS A. ADAMO '
Its:
Ms. EILEEN C. ADAMO
By:
Its:
"CITY"
ATTEST: CITY OF PALM SPRINGS, a municipal
corporation
City Clerk
By:
APPROVED AS TO FORM: Its: [Mayor] [City Manager]
BURKE, WILLIAMS & SORENSEN, LLP
David J. Aleshire
City Attorney
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'yExhibit "A": Parcel Map'l
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PARCEL "E", "F-1" & BENEFITED PARCEL
LEGAL DESCRIPTION OF "E" & "F-1" RESTRICTED PARCEL:
APN: 513-154-026 & PORTION OF APN: 513-154-025
ALL THAT PORTION OP LOT 19 OF BLOCK 28 OF PALM SPRINGS TOWNSITE AS RECORDED
IN MAP BOOK 9 AT PAGE 423,RECORDS OF SAN DIEGO COUNTY, CALIFORNIA,DESCRIBED
AS FOLLOWS;
BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 19,THENCE
SOUTH 890-52'-58"WEST ALONG THE SOUTH LINE OF SAID LOT 19,A DISTANCE 145.33 FEET
TO TLIE SOUTHWEST CORNER OF SAID LOT 19;
TTTENCE NORTH 000-05'27"WEST ALONG THE NORTH LINE OF SAID LOT 19 A DISTANCE OF
50.01 FEET TO THE NORTHWEST CORNER OF SAID LOT 19;
THENCE SOUTH 890-52'-48"EAST ALONG TTTE NORTH LINE OF SAID LOT 19 A DISTANCE OF
62.62 FEET;
THENCE SOUTH 000-05'-27"EAST A DISTANCE OF 25.01 FEET;
THENCE SOUTH 890-52'48"EAST A DISTANCE OF 82.71 FEET TO THE EAST LINE OF SAID
LOT 19;
THENCE SOUTH 000-05-38"EAST ALONG THE EAST LINE OF SAID LOT 19 A DISTANCE OF
25.00 FEET TO THE POINT OF BEGINNING.
EXCEPTING THAT PORTION LYING EASTERLY OF A LINE WHICH IS WESTERLY OF AND
50.00 FEET MEASURED AT RIGHT ANGLES FROM THE CENTER LINE OF EAST AVENUE
(NOW KNOWN AS INDIAN CANYON DRIVE)AS CONVEYED TO THE CITY OF PALM SPRINGS
BY DEED RECORDED JUNE 30, 1966 AS INSTRUMENT N067758, OFFICIAL RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA.
SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF RECORD IF ANY.
LEGAL DESCRIPTION OF BENEFITED PARCEL:
APN: 513-154-020 & PORTION OF APN: 513-154-025
ALL THAT PORTION OF LOT 19 AND THAT PORTION OF LOT 20 OF BLOCK 28 OF PALM
SPRINGS TOWNSITE AS RECORDED IN MAP BOOK 9 AT PAGE 423,RECORDS OF SAN DIEGO
COUNTY, CALIFORNIA,DESCRIBED AS FOLLOWS;
COMMENCING AT THE SOUTHEAST CORNER OF SAID LOT 19,THENCE
SOUTH 890-52'-48"WEST ALONG THE SOUTH LINE OF SAID LOT 19 A DISTANCE 145.33 FEET
TO THE SOUTHWEST CORNER OF SAID LOT 19;
THENCE NORTH 000-05'27"WEST ALONG THE NORTH LINE OF SAID LOT 19 A DISTANCE OF
50.01 FEET TO THE NORTHWEST CORNER OF SAID LOT 19 AND THE TRUEPOINT OF
BEGINNING;
THENCE SOUTH 890-52'48"EAST ALONG THE NORTH LINE OF SAID LOT 19 A DISTANCE OF
62.62 FEET;
THENCE SOUTH 000-05'-27"EAST A DISTANCE OF 25.01 FEET;
THENCE NORTH 890-52'-58"EAST A DISTANCE OF 82.71 FEET TO THE EAST LINE OF SAID
LOT 19;
THENCE NORTH 000-05'-38" WEST ALONG THE EAST LONE OF SAID LOTS 19 AND 20 A
DISTANCE OF 70.01 FEET TO A POINT THAT IS 5.00 FEET SOUTHERLY OF THE NORTHEAST
CORNER OF SAID LOT 20;
PAGE 2
LEGAL DESCRIPTION
"E","F-1"AND BENEFITED PARCELS
THENCE SOUTH 890-52'48"WEST,PARALLEL TO AND 5.00 FEET SOUTH MEASURED AT
RIGHT ANGLES FROM THE NORTH LINE OF SAID LOT 20,A DISTANCE OF 145.33 FEET TO
THE WEST LINE OF SAID LOT 20;
THENCE SOUTH 00-05'-27"EAST ALONG SAID WEST LINE OF LOTS 20 A DISTANCE OF 45.00
FEET TO THE POINT OF BEGINNING.
SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF RECORD IF ANY.
PREP D BY
SANG
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01-228EFIBENPCL 02/26/02 No.(S4/46 A
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PARIONG STRUCTURE
LEGAL DESCRIPTION:
ALL THAT PORTION OF PARCEL I OF PARCEL MAP NO.13574 AS RECORDED IN PARCEL
MAP BOOK 73 AT PAGE 52,RECORDS OF RIVERSIDE COUNTY,CALIFORNIA AND ALL OF
LOTS 17 AND 18 AND A PORTION OF LOT 19 OF BLOCK 28 OF PALM SPRINGS TOWNSITE AS
RECORDED IN MAP BOOK 9 AT PAGE 423,RECORDS OF SAN DIEGO COUNTY, CALIFORNIA,
DESCRIBED AS FOLLOWS;
COMMENCING AT THE SOUTHEAST CORNER OF SAID PARCEL 1,THENCE NORTH 000-05'-
38" WEST ALONG THE EAST LINE OF SAID PARCEL 1 AND THE EAST LINE OF SAID LOTS 17,
18 AND 19 A DISTANCE OF 325.06 FEET;THENCE SOUTH 890-52'-48"WEST A DISTANCE OF
82.71 FEET;
THENCE NORTH 000-05'-27" WEST A DISTANCE OF 25.01 FEET TO THE NORTH LINE OF SAID
LOT 19;
THENCE SOUTH 890-52'-48"WEST ALONG SAID NORTH LINE A DISTANCE OF 62.62 FEET TO
THE NORTHWEST CORNER OF SAIL)LOT 19;
THENCE SOUTH 000-05'-27"EAST ALONG THE WEST LINE OF SAID LOTS 19, 18 17 AND
PORTION OF THE WESTERLY LINE OF SAID PARCEL 1 A DISTANCE OF 350.06 FEET TO THE
SOUTH LINE OF SAID PARCEL 1;
THENCE NORTH 890-53'-07"EAST ALONG SAID SOUTH LINE A DISTANCE OF 145.35 FEET TO
THE POINT OF BEGINNING.
SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF RECORD IF ANY.
PREPARED BY
;SAA/E, �L �ANBORNPLS. 4146 �� \',SAN%U 02/27/02 QQ' �• 'P2 �
No.154146 0
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Exhibit "B": Site Plantj
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Level 2 Plan Level 3 Plan Level 4 Plan
" City Parking Lot
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Las Casuelas � ---
Taraza
I. Car Tabulation and Building Area
gB '" Levels Stan ord ondlcaa Tota! Area
Frank
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TOP LEVEL 35 35 11,020 S.F.
Trust
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Property "' e C LEVEL 3 121 - 121 37,658 S,F.
LEVEL 2 120 - 120 37,658 S.F.
F �
CGROUND LEVEL 92 11 103 37.658 S.F.
Chop House/ Deck _ g+__ ex W
MAL 368 11 379 123,994 S.F.
--
m II. Parking Data
Village P h PARKING STRUCTURE CAPACITY 379 STALLS
m -
W STALL WDTH -STANDARD 9'-0"
PARKING ANGLE 90,
EFFICIENCY 327 S.F./STALL
YH
296 South I,
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Baristo Road Exhibit "C":
Level 7 Plan plan of Improvement
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37 Spaces Reserved for 21 Spaces Reserved . f / i I rF
�I 296 South Palm Canyon Drive Property for Mathew Talala Parcel L.
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Indian Canyon Drive
V -
]EXHIBIT "E"
SCHEDULE OF PERFORMANCE
Items of Performance Time for Performance
1. Start Site Topographic Base Map and As Soon As Possible
Geoteclmical Report After Approval
2. Complete Topographic Base Map & Within Thirty (30)
Geotechnical Report Days of Approval
3. Start Design-Build Scope Documents by As Soon As Possible
A/E Team After Approval
4. Complete Design-Build Scope Document Within Sixty (60)
Bid Package Days of Approval
5. Begin Bid Phase for Design Build Contractors As Soon As Possible
After Execution
6. Complete Bid Phase and Award Design-Build Contract Within Sixty (60)
Days of Execution
7. City obtains a Preliminary Title Report describing As Soon As Possible
the state of title of the Parcel. After Execution
8. City provides the Title Notice to Seller Within Fifteen (15)
Days of Receiving the
Preliminary Title
Report
9. Seller notifies the City that it accepts or declines Within Five (5) Days
to remove Disapproved Exceptions, if any. of Receiving the
City's Title Notice
10. Scheduled Date for Due Diligence Forty-Five (45) Days
After Execution
11. Scheduled Date for Closing Sixty (60) Days
After Execution
12. Begin Site Demolition and Construction Phase June 2002 or June
June 2003
�' ✓ 13. Complete Site and Building Construction Phase November 14, 2002
or November 14,
2003
It is understood that the foregoing Schedule of Performance is subject to all of the
terms and conditions set forth in the text of the Agreement. The summary of the items of
performance in this Schedule of Performance is not intended to supersede or modify the
more complete description in the text; in the event of any conflict or inconsistency
between this Schedule of Performance and the text of the Agreement, the text shall
govern. Items marked for "Approval" are for illustrative and convenience purposes only
and are not intended to supersede or modify the Agreement.
Notwithstanding the foregoing, the City Manager shall have reasonable discretion
to extend the terms provided within the Schedule of Performance to conform with the
scheduling of the comrnencement of construction in either June 2002 or June 2003, as
provided in the Agreement.
iRv a 17s77 v 1 _2_
EXHIBIT"E"TO PURCHASE AND SALE AGREEMENT
6 ,v 28
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
THE CITY OF PALM SPRINGS
3200 East Tahquitz Canyon Way
Palm Springs, California 92262
Attn: City Clerk
(Space Above For Recorder's Use)
AGREEMENT CONTAINING COVENANTS, CONDITIONS AND RESTRICTIONS
THIS AGREEMENT CONTAINING COVENANTS, CONDITIONS AND
RESTRICTIONS ("Agreement") is entered into this _ day of , 2002, by
and between THOMAS A. ADAMO and EILEEN C. ADAMO ("Owner") and the CITY OF
PALM SPRINGS, a municipal corporation ("City").
RECITALS
A. Owner is the owner of certain real property located in the City of Palm Springs,
County of Riverside, State of California, commonly known as the "Aloe People," bearing APN
Number 513-154-025 (the "Aloe People Property") and real property and improvements
commonly known as the Fisherman's Market & Grille, located in the City of Palm Springs,
County of Riverside, bearing APN number 513-154-004 (the "Fisherman's Property")
(collectively the `Benefited Property"). The legal description of the Benefited Property is set
forth in the "Legal Description" attached hereto as Exhibit "A" and is shown in the "Site Map"
attached hereto as Exhibit`B", both of which exhibits are incorporated herein by this reference.
B. The City is acquiring certain parcels of property to construct various parking
improvements adjacent to the Benefited Property, including surface parking to provide
approximately thirty-two (32) spaces and a three (3) level parking structure with approximately
three hundred eighty(380) spaces (the "Parking Structure").
C. The Parking Structure is located on certain property described herein as the
"Parking Structure Property." The legal description of the Parking Structure Property is set forth
in Exhibit "A". The Parking Structure Property includes various parcels including parcels
conveyed by Owner. One parcel conveyed by Owner is real property currently being used for
office and multi-family residential apartments, located in the City of Palm Springs, County of
Riverside, bearing APN Number 513-154-026, consisting of approximately 3,563.25 square feet
of improved property, together with ell improvements now or hereafter constructed thereon
("Parcel E"). Another parcel conveyed by Owner is a portion of the Aloe People Property
consisting of approximately 1,565.5 square feet of improved property ("Parcel F"). Parcels E
and F are legally described as the"Restricted Parcel" in Exhibit"A".
IRV#19281 v5
D. In exchange for the conveyance by Owner to City of the Restricted Parcel, the
City has agreed, among other things, to record this Agreement reserving certain parking rights in
the Parking Structure for the benefit of the Benefited Property, subject to certain obligations.
NOW, THEREFORE, the parties declare, covenant and agree, by and for themselves,
their heirs, executors and assigns, and all persons claiming under or through them that the
Restricted Parcel shall be held, transferred, encumbered, used, sold, conveyed, leased and
occupied subject to the covenants, restrictions and obligations hereinafter set forth, subject to the
obligations of the Owner of the Benefited Property to meet certain conditions as described
herein. n•
1.0 Allocation of Reserved Parking Spaces.
ustjoiC{.d-
/o ? 11
In consideration for onveyance of the Restricted Parcel to City to develop the
Parking Structure, and for the to designated in Section 9.1 below, the City agrees to allocate
reserved parking within the aew-ato the Benefited Property as provided herein. The
Benefited Property shall be provided with sixteen (16) reserved parking spaces (the "Reserved
Spaces"), located as shown in the "Parking Restriction Plan" attached hereto as Exhibit C and
incorporated herein by this reference. The parking spaces provided herein are "reserved" in the
sense that a sign will be located on a particular space as to indicate that the space is provided
solely for the Benefited Property and for the Owner, tenants, business occupants and invitees to
the Benefited Property. No gates or other access mechanisms will be provided to further restrict
parking access to reserved spaces other than the signs described above. Additionally, Owner or
Owner's tenants or business occupants shall be permitted to employ parking attendants and
valets in theitar1F-ttrgtru.�et at their own expense to control access to or use of the Reserved
Spaces for restricted or let parking purposes. ^ I
Lu 1" ad,joc c,9r r '4a �Z•/ 7;;i ^4-r. d Or'o,.2►
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2.0 No Severance or Assigmnent of Reserved Parking Spaces. i 1
The Reserved Spaces shall inure to the benefit of the Benefited Property only and
for the owners, tenants business occupants and invitees thereto; provided, however, that Owner
shall not sever or assign, the rights to the Reserved Spaces, which shall be deemed to run with
and benefit the Benefited Property and run with and burden the Parking Structure Property
pursuant to Section 9.
3.0 Restricted Parking and Zoning.
3.1 Effect in Zoning
It is agreed between the parties that the Reserved Spaces shall be considered
towards meeting Owner's obligation to provide on-site parking spaces under the Palm Springs
Zoning Ordinance. In determining future uses of the Benefited Property, the Reserved Spaces
shall be counted as if they were still on-site spaces of the Benefited Property. Nothing herein
shall prevent the City from amending its zoning ordinance in the future concerning downtown
parking or the manner in which parking requirements are established or counted for future
tenants, or to deny uses with insufficient parking, but Owner shall be entitled to count Reserved
Spaces provided in this Agreement as if they were on-site spaces.
IRV 419281 v5 -2-
3.2 Parking for Second Floor Expansion
Owner intends to construct an eight hundred (800) square foot second floor
addition on the Benefited Property for office space. Notwithstanding the provisions of Section
3.1 above, as consideration for the Restricted Parcel, City agrees that the Reserved Spaces shall
be deemed sufficient to satisfy the parking requirements for such office space without any other
parking restrictions, in lieu fees or other parking charges.
4.0 Obligations of City.
4.1 Condition of the Parking Structure. City shall maintain the Parking
Structure in good working order, reasonable wear and tear excepted. The City, as owner of the
Parking Structure, shall have the full and complete right to reconstruct, modify, rehabilitate,
improve, change or alter the Parking Structure, even if such work should temporarily restrict
access to parking spaces, provided that (i) City will give Owner reasonable prior notice of any
such work, (ii) City will make all reasonable efforts to minimize the disruption to parking within
the Parking Structure and adjoining businesses caused by such work during normal business
hours, and(iii) City will not reduce the number of Reserved Spaces.
4.2 Trash. The City shall provide Owner with a reasonable site for trash
disposal, as specifically set forth in the Site Map, attached hereto as Exhibit `B." The trash
disposal area shall be accessible during normal business hours and Owner shall be responsible
for all disposal fees and for the proper disposal of trash to keep the trash area clean and sanitary.
The parties may enter into a separate agreement concerning the trash storage area.
5.0 Obligations of Owner.
5.1 Compliance with Applicable Laws. Owner shall comply with all
ordinances, regulations and standards of the City applicable to the Benefited Property.
5.2 Notice to Tenants. Owner shall provide any proposed tenants of any
portion of the Benefited Property with a copy of this Agreement and shall include in any lease
agreement executed hereafter, a provision requiring tenant's compliance with the terms of this
Agreement.
5.3 Insurance. The Owner shall procure and maintain, at its sole cost and
expense, in a form and content reasonably satisfactory to City, during the entire term of this
Agreement including any extension thereof, a policy of commercial general liability insurance
written on a per occurrence basis for bodily injury and property damage including coverage for
contractual liability, personal injury, broad form property damage, products and completed
operations, providing coverage for Owner's employees, agents, and invitees use of the Reserved
Spaces in the Parking Structure. The policies shall be considered primary and shall name the
City of Palm Springs as additional insured in accordance with standard ISO additional insured
endorsement form CG2010(1185) or equivalent language. Upon request by City's Risk
Manager, Owner shall provide Risk Manager, with copies of such insurance coverage and shall
make adjustments necessary to maintains appropriate coverage.
IRV k19281 v5
�• 31
j I �
6.0 Nondiscrimination.
There shall be no discrimination against or segregation of any person, or group of
persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Benefited
Property, or any part thereof, nor shall Owner, or any person claiming under or through it,
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees of the Benefited Property, or any part thereof.
7.0 Indemnification.
Each party agrees to indemnify the other, its officers, and employees against, and
will hold and save them and each of them harmless from, any and all actions, suits, claims,
damages to persons or property, losses, costs, penalties, obligations, errors, omissions or
liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person, firm or
entity arising out of or in connection with the acts or omissions of said party, its agents,
employees, subcontractors, or invitees hereunder, excluding such claims or liabilities arising
from the sole negligence or willful misconduct of the other party.
8.0 Enforcement.
8.1 Default and Opportunity to Cure. Failure or delay by either party to timely
perform any covenant of this Agreement constitutes a default under this Agreement, but only if
the party who so fails or delays does not commence to cure, correct or remedy such failure or
delay within thirty (30) days after receipt of a notice specifying such failure or delay, and that
party does not thereafter prosecute such cure, correction or remedy with diligence to completion.
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, or
imminent threat of personal injury, the injured party may not institute proceedings against the
parry in default until thirty (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.
8.2 Remedies.
A. General. Either party having complied with the provisions of Section 8.1
may institute action to cure, correct or remedy any default consistent with the proposes of this
Agreement. The parties acknowledge and agree that any material violation of this Agreement is
likely to result in immediate and irreparable harm for which monetary damages are likely to be
inadequate. The parties further agree not to pursue legal damages one against the other, except
as notices herein.
B. Equitable Remedies. If either party defaults hereunder by failing to
perform any of its obligations herein, each party agrees that the other shall be entitled to
equitable remedies including the judicial remedy of specific performance and injunctive relief
and each party agrees (subject to its reserved right to contest whether in fact a default does exist)
[av 419281 vs _4_
not to challenge or contest the appropriateness of such remedy. The parties further agree to take
every action possible expedite legal review of such issues.
C. No Termination. City expressly agrees that although this Agreement may
terminate pursuant to Section 9.0, City may not terminate due to default by Owner, but in
addition to all other remedies, shall have the remedies provided in subsection D of this Section.
D. City Right to Perform Work. After giving notice pursuant to Section 8.1,
and in lieu of judicial action pursuant to 8.2, City may correct any default through its employees,
agents or contractors by performing any action required of Owner and may then charge Owner
for its actual expenses for performing such work. Owner shall pay any such charges within
thirty (30) days after receiving written notice thereof, and shall pay interest for late payment
thereafter at the legal rate, provided that Owner may appeal the reasonableness or need for such
charges to the City Council at a public meeting, and in the event such appeal is rejected, may
contest charges judicially.
8.3 Law and Forum. The Laws of the State of California shall govern the
interpretation and enforcement of this Agreement. Actions must be instituted and maintained in
the Indio branch of the Superior Court of the County of Riverside, State of California, in any
other appropriate court in that county, or in the Federal District Court in the Central District of
California.
8.4 No Waiver. No delay or omission in the exercise of any right or remedy
by a non-defaulting party on any default shall impair such right or remedy or be construed as a
wavier. A parry's consent to or approval of any act by the other party requiring the party's
consent or approval shall not be deemed to waive or render unnecessary the other party's consent
to or approval of any subsequent act. Any waiver by either party of any default must be in
writing and shall not be a waiver of any other default concerning the same or any other
provisions of this Agreement.
8.5 Prevailing Party Attorneys' Fees. In any action between the parties
seeking enforcement of any of the terms and provisions of this Agreement, the prevailing party
in such action shall be awarded, in addition to specific performance, injunctive or other relief, its
reasonable costs and expenses, including attorneys' fees.
9.0 Term and Reversion.
9.1 Term. The covenants, conditions and restrictions contained in this
Agreement shall remain in effect for a period of thirty (30) years from the date of this Agreement
and shall thereafter automatically be extended for additional periods of five (5) years, unless
prior to any such extension the City elects to terminate this Agreement by providing written
notice to Owner. In addition, this Agreement shall terminate if the Parking Structure is
destroyed, except as otherwise provided in Section 9.0. The covenants contained in Section 6.0
shall remain in effect for perpetuity.
9.2 Destruction, Closure and Replacement of Parking Structure on the
Restricted Parcel. Should the Parking Structure be totally or substantially destroyed or
1RV#19281 v5
b - 33
permanently closed, either through peril or due to economic or functional obsolescence or other
cause, City shall have no obligation to Owner to replace such Parking Structure. City shall
determine within 180 days of such event, whether City intends to replace, restore or repair the
Parking Structure or to permit reversion pursuant to Section 9.4, and shall promptly give Owner
written notice of such determination. In the event the City decides to replace such Parking
Structure, City shall do so with a substantially equivalent Parking Structure within one year of
the destruction or closure of the Parking Structure, and shall provide an equivalent number of
restricted parking spaces in the new structure to Owner as provided hereunder, and this
Agreement shall continue in full force and effect. If City determines not to replace, restore or
repair the Parking Structure, then this Agreement shall terminate immediately and the Restricted
Parcel shall be restored to Owner pursuant to Section 9.4. In the event of destruction or closure
as provided herein, until the Parking Structure is restored or replaced or reversion occurs under
Section 9.4, City shall endeavor to provide restricted parking spaces to Owner on a pro rata basis
with other owners, until the Parking Structure is replaced or restored to full operation.
9.3 Proceeds of Insurance or Condemnation. If during the term of this
Agreement the Parking Structure is destroyed by insured peril or taken by the exercise of the
power of eminent domain, Owner shall have no right to the receipt of the proceeds thereof, but
shall be entitled to exercise its power of reverter as described in Section 9.4. It is expressly
understood that this Agreement shall not be deemed an interest in real property.
9.4 Owner's Remedy of Reversion. In the event that the Parking Structure is
demolished and not replaced pursuant to Section 9.2 and this Agreement is terminated, then the
Restricted Parcel shall revert to the Owner of the Benefited Property, their heirs, successors and
assigns. The parties shall cooperate in recording quitclaim deeds or other necessary documents
for the City to convey the Restricted Parcel to Owner and to eliminate either party's interest in
this Agreement. The Restricted Parcel shall be returned in a similar physical condition as
conveyed, and free of all structures, improvements or conditions.
10.0 Covenants to Run With the Land.
10.1 Covenants Running With the Land. This Agreement is designed to create
equitable servitudes and covenants appurtenant to the Restricted Parcel and running with the
Benefited Property. The parties declare that the Restricted Parcel shall be held, sold, conveyed,
encumbered, hypothecated, leased, used, occupied and improved subject to the covenants,
conditions, restrictions and equitable servitudes, all of which are for the purposes of uniformly
enhancing or protecting the value, attractiveness and desirability of the Benefited Property and
the Restricted Parcel. The covenants, conditions, restrictions, reservations, equitable servitudes,
liens and charges set forth herein shall run with the Restricted Parcel and shall be binding upon
all persons having any right, title or interest in the Restricted Parcel, or any part thereof, their
heirs, successive owners and assigns; shall inure to the benefit of every portion of the Benefited
Property and any interest therein; shall be binding upon City, its successors and assigns and
successors in interest; City and Owner hereby declare their understanding and intent that the
burden of the covenants set forth herein touch and concern the land. City and Owner hereby
further declare their understanding and intent that the benefit of such covenants touch and
concern the land by enhancing and increasing the enjoyment and use of the Restricted Parcel by
IRV#19281 v5 _6_
the citizens of the City and by furthering the health, safety, welfare and convenience of the
residents of the City and the owners or tenants of the Benefited Property.
10.2 Agreement Between Owner and City. The parties hereby agree to hold,
sell, and convey their respective parcels subject to the covenants, conditions, restrictions and
reservations of this Agreement. The parties also grant each to the other the right and power to
enforce the covenants, conditions, restrictions and reservations contained in this Agreement
against the other party and all persons having any right, title or interest to their respective parcel,
or any part thereof, their heirs, successive owners and assigns.
10.3 No Mortgages. Owner may not pledge, encumber, secure or otherwise
hypothecate any interest created by this Agreement, or any interest in the Restricted Parcel, for
purposes of obtaining financing or for any other purpose.
11.0 Miscellaneous.
11.1 Modification. This Agreement may not be modified, terminated or
rescinded, in whole or in part, except by a written instrument duly executed and acknowledged
by the parties hereto, their successors or assigns and duly recorded in the Office of the County
Recorder, County of Riverside.
11.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
11.3 Severability. The invalidity of or inability to enforce any provision of this
Agreement with respect to a particular party or set of circumstances shall not in any way affect
the validity and enforceability of any other provision hereof, or the same provision when implied
to another party or to a different set of circumstances.
11.4 Notices. Any notice to be given under this Agreement shall be given by
personal delivery or by depositing the same in the United States Mail, certified or registered,
postage prepaid, at the following address:
City: City of Palm Springs
P.O. Box 2743
Palm Springs, CA 92263
Attn: City Clerk
With Copy to: Burke, Williams & Sorensen, LLP
18301 Von Karman Ave, Suite 1050
Irvine, CA 92612
Attn: David J. Aleshire, Esq. f'
Owner: '�i161WIgC t �/LFEN A 34/00
6a Mac �
IRV 419281 v5 -7-
b _ 3S-
With Copy to: T&:;FF t `/ L . F-A6 A4 bC'lt6 e-1bt .
192+r E• 7A#46A111r7
e vVa
Ott-
Any notice delivered personally shall be effective upon delivery. Any notice given by
mail as above provided shall be effective forty-eight (48) hours after deposit in the mails. Any
party may change address for notice by giving written notice of such change to the other party.
11.5 Counterparts. This Agreement may be executed in any number of
counterparts each of which shall be an original but all of which shall constitute one and the same
document.
11.6 Authority to Sign. The persons executing this Agreement on behalf of
the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly
authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing
this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the
entering into this Agreement does not violate any provision of any other Agreement to which
said party is bound.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
Mr. THOMA$-A,ADAMO
By:
Its:
Ms. EILEEN C. ADAMO
C. l t L
Its:
"Owner"
[OWNER'S SIGNATURE MUST BE NOTARIZED]
IRV#19281 v5 -
_g_ -3(P
ATTEST: CITY OF PALM SPRINGS,
a municipal corporation
By: By.
City Clerk City Manager
APPROVED AS TO FORM: RECOMMENDED:
BURKE, WILLIAMS & SORENSEN, LLP
By:
David J. Aleshire, Director of Public Works
City Attorney
APPROVED AS TO OWNERSHIP AND
LEGAL DESCRIPTION
IRV#19281 v5 -9- 6-- 37
i
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On 4ZI�IQLIV d cc > , before me, 2/Vc/hi-7 IV, C-Pt1elJ Notary Public,
personally appeared =/,��� gS 4. A 01,rn 0 a r� FiL IQF it/ C. /4 D f/,it o ,
personally-known-to-me, (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he4s-Wthey executed the same in hisFher/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
a
S °� L,AUNA M. GAHI7NER o
2 COMM. #1262875 n
°�� '" v� NOTARY PUBLIC CALIFORNIA
` -� - RIUERSIDECOUNTY
�°`� My Comm.Exp.May 19,2004
MM1d"tl�eaFr:r.t.¢s�+.asn�.waasne�N���en
IRV R19281 v5 -13-
® x Arenas Road
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xu Muriel's
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iYi11�
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��I i�Restri�cteid Parcel E/F,�7 �'.• � 6. C
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Benefited Property,L�.I
Parcel B
o r` aaa
,�•° Benefited Propeiity,j01 041��
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Exhibit A . Parcel Map
bw,39
PARCEL "E", "F-I" & BENEFITED PARCEL
LEGAL DESCRIPTION OF "E" & "F-1"RESTRICTED PARCEL:
APN: 513-154-026 & PORTION OF APN: 513-154-025
ALL THAT PORTION OF LOT 19 OF BLOCK 28 OF PALM SPRINGS TOWNSITE AS RECORDED
IN MAP BOOK 9 AT PAGE 423,RECORDS OF SAN DIEGO COUNTY, CALIFORNIA,DESCRIBED
AS FOLLOWS;
BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 19,THENCE
SOUTI3 890-52'-58"WEST ALONG THE SOUTH LINE OF SAID LOT 19 A DISTANCE 145.33 FEET
TO THE SOUTHWEST CORNER OF SAID LOT 19;
THENCE NORTH 000-05'27"WEST ALONG THE NORTH LINE OF SAID LOT 19 A DISTANCE OF
50.01 FEET TO THE NORTHWEST CORNER OF SAID LOT 19;
THENCE SOUTH 890-52'48"EAST ALONG THE NORTH LINE OF SAID LOT 19 A DISTANCE OF
62.62 FEET;
THENCE SOUTH 000-05'-27"EAST A DISTANCE OF 25.01 FEET;
THENCE SOUTH 890-52'48"EAST A DISTANCE OF 82.71 FEET TO THE EAST LINE OF SAID
LOT 19;
THENCE SOUTH 000-05-38"EAST ALONG THE EAST LINE OF SAID LOT 19 A DISTANCE OF
25.00 FEET TO THE POINT OF BEGINNING.
EXCEPTING THAT PORTION LYING EASTERLY OF A LINE WHICH IS WESTERLY OF AND
50.00 FEET MEASURED AT RIGHT ANGLES FROM THE CENTER LINE OF EAST AVENUE
(NOW KNOWN AS INDIAN CANYON DRIVE)AS CONVEYED TO THE CITY OF PALM SPRINGS
BY DEED RECORDED JUNE 30, 1966 AS INSTRUMENT N067758, OFFICIAL RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA.
SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF RECORD IF ANY.
LEGAL DESCRIPTION OF BENEFITED PARCEL:
APN: 513-154-020 & PORTION OF APN: 513-154-025
ALL THAT PORTION OF LOT 19 AND THAT PORTION OF LOT 20 OF BLOCK 28 OF PALM
SPRINGS T'OWNSITE AS RECORDED IN MAP BOOK 9 AT PAGE 423,RECORDS OF SAN DIEGO
COUNTY, CALIFORNIA,DESCRIBED AS FOLLOWS;
COMMENCING AT THE SOUTHEAST CORNER OF SAID LOT 19,THENCE
SOUTH 890-52'-48"WEST ALONG THE SOUTH LINE OF SAID LOT 19 A DISTANCE 145.33 FEET
TO THE SOUTHWEST CORNER OF SAID LOT 19;
THENCE NORTH 00 05'27"WEST ALONG THE NORTH LINE OF SAID LOT 19 A DISTANCE OF
50.01 FEET TO THE NORTHWEST CORNER OF SAID LOT 19 AND THE 772UEPOINT OF
BEGINNING;
THENCE SOUTH 890-52'48"EAST ALONG THE NORTH LINE OF SAID LOT 19 A DISTANCE OF
62.62 FEET;
THENCE SOUTH 000-05'-27"EAST A DISTANCE OF 25.01 FEET;
THENCE NORTH 890-52'-58"EAST A DISTANCE OF 82.71 FEET TO THE EAST LINE OF SAID
LOT 19;
THENCE NORTH 000-05'-38"WEST ALONG THE EAST LONE OF SAID LOTS 19 AND 20 A
DISTANCE OF 70.01 FEET TO A POINT THAT IS 5.00 FEET SOUTHERLY OF THE NORTHEAST
CORNER OF SAID LOT 20;
PAGE 2
LEGAL DESCRIPTION
"E","F-1"AND BENEFITED PARCELS
THENCE SOUTH 890-52'-48"WEST,PARALLEL TO AND 5.00 FEET SOUTH MEASURED AT
RIGHT ANGLES FROM THE NORTH LINE OF SAID LOT 20,A DISTANCE OF 145.33 FEET TO
THE WEST LINE OF SAID LOT 20;
THENCE SOUTH 00-05'-27"EAST ALONG SAID WEST LINE OF LOTS 20 A DISTANCE OF 45.00
FEET TO THE POINT OF BEGINNING,
SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF RECORD IF ANY.
PREPAR D BY
SANIQ
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M,SA SG
JO L. SANBORN PLS. 4146 aQ0 �. fyb•0,92'9��
01-22REFIBENPCL 02/26/02
L'b•LS4146 0
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PARKING STRUCTURE
LEGAL DESCRIPTION:
ALL THAT PORTION OF PARCEL 1 OF PARCEL MAP NO.13574 AS RECORDED IN PARCEL
MAP BOOK 73 AT PAGE 52,RECORDS OF RIVERSIDE COUNTY,CALIFORNIA AND ALL OF
LOTS 17 AND 18 AND A PORTION OF LOT 19 OF BLOCK 28 OF PALM SPRINGS TOWNSITE AS
RECORDED IN MAP BOOK 9 AT PAGE 423,RECORDS OF SAN DIEGO COUNTY, CALIFORNIA,
DESCRIBED AS FOLLOWS;
COMMENCING AT THE SOUTHEAST CORNER OF SAID PARCEL 1,THENCE NORTH 000-05'-
38"WEST ALONG THE EAST LINE OF SAID PARCEL 1 AND THE EAST LINE OF SAID LOTS 17,
18 AND 19 A DISTANCE OF 325.06 FEET;THENCE SOUTH 890-52'-48"WEST A DISTANCE OF
82.71 FEET;
THENCE NORTH 000-05'-27" WEST A DISTANCE OF 25.01 FEET TO THE NORTH LINE OF SAID
LOT 19;
THENCE SOUTH 890-52'-48"WEST ALONG SAID NORTH LINE A DISTANCE OF 62.62 FEET TO
THE,NORTHWEST CORNER OF SAID,LOT 19;
THENCE SOUTH 000-05'-27"EAST ALONG THE WEST LINE OF SAID LOTS 19, 18 17 AND
PORTION OF THE WESTERLY LINE OF SAID PARCEL 1 A DISTANCE OF 350.06 FEET TO THE
SOUTH LINE OF SAID PARCEL 1;
THENCE NORTH 890-53'-07"EAST ALONG SAID SOUTH LINE A DISTANCE OF 145.35 FEET TO
THE POINT OF BEGINNING.
SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF RECORD IF ANY.
PREPARED BY
SAN,B A/E -
LA
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-229PK STRU 02/27/02 aQ' 92 t2
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op
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—----------
Muriel's
Parking
IX IMuriel's Lot
Supper Club
,4 0
10
City Parking Lot
Las Casuelas
Terraza I a P! �iqg ?Ico
Reserved
fo OMWP ,Fisherman's market
Trash
Service
0 rt
6
Frank 16L
Building
A C
C
It
PUblic—I
Chop HOUL/
C e Th Deck
0 E ,-----
N ' Parking---
C Structure -f
J.
296 South
Palm Canyow
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a
Exhibit nB": Site PlaIrl
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01
7
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---LI -` ` ❑i
s•� Q 16 Parking Lot Spaces
m Reserved for
ENI a i Frank Family Trust Parcel
an g� J
I Service Drive �cE r
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1 ye 25 Spaces Reserved �� •
tld PffLIC In SAACE$ 21 for Zachary Franks Parcel M
PAXIfNC
j MD c>at01EF AARlt /2SSAAOfS (Chop House and The Deck) °
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37 Spaces Reserved for 21 Spaces Reserved for Mathew Taiala Parcel P ' Q
296 South Palm Canyon Drive Property
(Village Pub) G' '
3JAx m
7
Indian Canyon Drive
AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND
INSTRUCTIONS (this "Agreement") is made this day of , 2002, by and between
the CITY OF PALM SPRINGS, a municipal corporation ("City"), and ZACHARY FRANKS
("Seller").
RECITALS:
A. The City desires to construct various parking improvements, including a multi-
level parking structure, within a site bounded by Palm Canyon Drive, Indian Canyon Drive,
Baristo Road and Arenas Road, and as more specifically shown as the "Site" on the "Site Plan"
attached hereto as Exhibit B and incorporated herein by this reference.
B. The parking improvements include reconstructing the surface parking to provide
approximately thirty-two (32) spaces and constructing a three (3) level parking structure with
approximately three hundred eighty (380) spaces. All of such improvements are collectively
referred to as the "Project" and are depicted in the "Plan of Improvement" attached as Exhibit C
and incorporated herein by this reference.
C. The Site is divided into various parcels, some of which will be developed with
surface parking and others which will be developed with the parking structure. Those parcels to
be acquired by the City are shown on the Site Plan(Exhibit B).
D. Some of the parcels to be acquired currently provide surface parking for the
businesses located on such parcels. In consideration for the property owner's conveyance of the
parcel or portion thereof necessary for the Project, the City will agree: (1) to construct the
Project, (2) to restrict a portion of the parking spaces as provided herein, and (3) to deem such
restricted parking as satisfying the property's obligation to provide parking for various
commercial uses pursuant to the zoning ordinance.
E. Seller is the current owner of real property and improvements, for the current
benefit of the lessee commonly known as "The Chop House," located in the City of Palm
Springs, County of Riverside, bearing APN Number 513-154-008 (the "Chop House Property").
Seller and any successor in interest to fee title to the Chop House Property shall sometimes be
referred to herein as "Owner". The pertinent portion of the Chop-House Property that is being
conveyed to the City for the purposes of the Project and consists of approximately 7,300 square
feet of paved surface parking, as more particularly shown in the "Parcel Map" as Parcel "C" and
as described in the "Legal Descriptions" attached hereto as Exhibit "A," and incorporated herein
by this reference. Parcel C is also referred to herein as the "Parcel." Additionally, the Chop
House Property has previously paid, or will pay (by a separate agreement), in lieu fees in the
amount of $110,000, for parking improvements to benefit the Chop House Property (the
"Assessment").
IRV 1119234 v4
F. In consideration for the Assessment and for Seller conveying the Parcel to City by
the time provided herein, City agrees to restrict the parking area as shown in the "Parking
Restriction Plan" attached as Exhibit D and incorporated herein by this reference.
G. The Project will be developed in accordance with the schedule shown in the
"Schedule of Performance" attached hereto as Exhibit E and incorporated herein by this
reference. In the event City fails to commence constructing the Project pursuant to Section 3.4
or thereafter demolishes the Project, the Property will be restored to the owner without liability
to either party, as specifically set forth under Section 3.4, below.
H. Certain restrictions herein run with the land and are contained in the "Agreement
containing Covenants, Conditions and Restrictions" attached hereto as Exhibit F and
incorporated by this reference (the "Declaration").
NOW, THEREFORE, the parties hereto agree as follows:
TERMS AND CONDITIONS
1. PURCHASE AND SALE OF PROPERTY.
The City hereby agrees to purchase from Seller, and Seller agrees to sell to the City the
Parcel, upon the terms and conditions hereinafter set forth.
2. DESCRIPTION OF THE PARKING FACILITY.
The Site shall be improved with a public parking facility consisting of three levels and
approximately three hundred eighty (380) spaces (the "Parking Structure"). The bottom level of
the Parking Structure shall be designated for business parking, to replace the parking areas
contributed to the Project by the adjacent business owners, including for Seller's respective
businesses, as provided under this Agreement. The business parking shall be reserved as further
described in Section 4. The specific design of the Parking Structure is attached hereto in the Plan
of Improvement (Exhibit "C").
3. SCHEDULE OF PERFORMANCE.
3.1 Timing of Construction.
The Project will be undertaken in accordance with the Schedule of Performance (Exhibit
"E"). City shall use a regular public improvement bid process or design build process to cause
the Parking Structure, which is estimated to take six (6) months to construct, to be constructed in
the off-season. However, the process of designing the Parking Structure and awarding the
contract may not be concluded in time to allow construction to be commenced and completed in
the 2002 off-season. Accordingly, construction may only commence during the month of June in
2002 or 2003 (the "Commencement Dates"), except as otherwise provided in Section 3.4. City
shall make best efforts to commence construction during 2002, and to complete construction
prior to November 15 of any year in which construction is commenced. City will use reasonable
efforts to coordinate the concurrent closing on all parcels necessary to the Project in accordance
IRV k 19234 v4 _2_
with Section 10, so that the Project can be constructed in accordance with the terms set forth
under Section 3.4, below.
3.2 Efforts to Minimize Business Disruption.
During the course of construction, the City will make best efforts to minimize business
disruption, but Seller understands that City must take all actions necessary to complete
construction prior to November 15 of the year in which construction is commenced. City will
maintain a reasonable pedestrian service corridor to the back of Seller's building, but this service
corridor will not provide for vehicular access. During the period of Project construction, the
Seller, Seller's tenants and invitees will have no designated parking, but City will use reasonable
efforts to develop a temporary parking plan which will be sensitive to the parking deficiencies
which will exist during construction.
3.3 Waiver of Damages for]Delay.
The City shall take reasonable and appropriate actions to ensure completion of the
Parking Structure within six (6) months of commencing construction. However, nothing herein
shall be construed as an express or implied guarantee as to the date of completion of the Parking
Structure, or subject the City or its officers, agents, assignees, and employees to damages,
including liquidated damages, damages for business disruption, or other damages, if the Parking
Structure is not completed in conformance with the timelines set forth in the Schedule (Exhibit
«E"
3.4 Failure to Timely Commence Construction.
Should City fail to commence construction by June 30, 2003 (except as provided herein),
or should City earlier abandon the Project, prior to commencing construction then, within sixty
(60) days thereafter, this Agreement, including the Declaration, shall be automatically terminated
and, if closing has occurred, City shall reconvey the Parcel to Seller, except as provided in
Section 10. All rights and obligations which either party shall have hereunder, including to
exchange property, to construct parking improvements, to provide restricted parking areas, and
all other matters shall terminate and neither party shall have any right or liability against the
other except: (i) City shall have the obligation to return the Parcel in the same condition it was
received, and (ii) this waiver of liability shall survive termination. Notwithstanding the
foregoing, the City may continence construction as much as thirty (30) days after the
Commencement Dates, so long as there is a reasonable expectation that the Project can timely be
completed prior to November 15.
4. COMPENSATION TO SELLER THROUGH ASSIGNMENT OF RESERVED
PARKING SPACES.
In consideration for the Parcel, the City agrees to allocate reserved parking to the Seller's
property for so long as the Parking Structure remains open and operating as provided herein and
subject to the provisions of the Declaration. The following allocations of reserved parking
spaces are based on the combined land. value and in lieu fees previously paid by the Seller as
specifically set forth under Section 4.2, below.
Iavai9zsa0
4.1 Definition of"Reserved" Parking Spaces.
The parking spaces provided herein are "reserved" in the sense that a sign will be located
on a particular space as to indicate that the space is provided solely for the use of Seller, Seller's
business occupants or invitees. No gates or other access mechanisms will be provided to further
restrict parking access to reserved spaces on the first level of the Parking Structure, other than
the signs described above. It is understood that the Owner, at Owner's expense, may employ
parking attendants and valets in order to control usage of the parking spaces and provide valet
service, who will comply with all City rules and regulations governing the use of the Parking
Structure.
4.2 Specific Allotment of Reserved Parking to Seller's Property.
In consideration for the Parcel and the Assessment, the Chop House Property will be
provided with twenty-five (25) reserved parking spaces on the first level of the Parking
Structure, as depicted in"Parking Restriction Plan," (Exhibit D).
4.3 No Assignment of Rights.
The allocation of parking spaces described in Section 4.2, above, shall inure to the benefit
of the Owner, for the benefit of itself, its lessees, sublessees, business occupants and invitees;
provided, however, that Owner shall not sever or assign via lease agreement or otherwise, the
rights to the parking allocations as provided under Section 4.2 above, which shall be deemed to
run with the benefited parcel. Nothing herein shall restrict the Owner from assigning parking
space for the lessees and sublessees, business occupants and invitees of'the Chop House
Property.
4.4 Signage and Display Windows.
Seller will have the right to participate in the City's sign program to provide signage on
the Parking Structure, which provides compensation to the Seller for loss of visibility on Baristo
Road and Indian Canyon Drive. The sign program will be subject to the Seller's approval and
signage will be provided on a rent free basis and in accordance with all applicable laws,
including, but not limited to, the Palm Springs Municipal Code and the Palm Springs Zoning
Code, and subject to the final design of the Parking Structure.
4.5 Restricted Parking and Zoning.
It is agreed between the parties that the restricted parking spaces shown in the Parking
Restriction Plan (Exhibit D) shall be considered to meet Seller's obligation to provide on-site
parking spaces under the Palm Springs Zoning Ordinance. In determining future uses of the
Seller's remaining property, the parking spaces provided in the Declaration shall be counted as if
they were still on-site spaces. Nothing herein shall prevent the City from amending its zoning
ordinance in the future concerning downtown parking or the manner in which parking
requirements are established or counted for future tenants, or to deny uses with insufficient
parking, but Seller shall be entitled to count the restricted spaces provided in the Declaration for
Seller's parcel as if they were on-site spaces.
IRV#19234 0 -4- V
5. WAIVER OF ADDITIONAL COMPENSATION OR DAMAGES.
Seller agrees to accept the consideration provided herein as frill and complete
compensation for the value of the Parcel conveyed to City hereby. In this regard, Seller is aware
of the appraisal obtained by City and has had the right to consult other appraisers, attorneys and
other advisors of Seller's choosing. In executing this Agreement, Seller waives the right to
receive any other compensation for fixtures and equipment, business goodwill, severance,
inverse condemnation, pre-condemnation and all other elements of compensation whatsoever,
whether known or unknown.
Through execution of this Agreement, and with respect to compensation for conveyance
of the Restricted Parcel described above, Seller further waives, releases and forever discharges
claims both known and unknown as provided herein, Seller expressly waives any and all rights
under California Civil Code Section 1542, which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE IIEBTOR."
With respect to the matters released hereunder, Seller waives and relinquishes any and all
rights and benefits which they have or may have under Section 1542 of the Civil Code of the
State of California. Seller acknowledges they are aware that it may hereafter discover facts in
addition to or different than those which they now know or believe to be true with respect to the
claims, allegations, events and facts set forth in the Recitals herein, but it is the Seller's intention
hereby to fully and finally release any and all matters, disputes, and differences, known or
unknown, suspected or unsuspected, which now exist, may exist, or heretofore have existed, as
against the each other, and in furtherance of this intention, the release herein given shall be and
remain in effect as a full and complete general release notwithstanding discovery or existence of
any such additional or different facts.
Initials
6. FINANCING AND ACQUISITION OF PARCELS.
6.1 Agreement Contingent on Financing.
This Agreement is contingent on the City's ability to obtain sufficient financing as to
finance the actual construction of the Parking Structure. The requisite financing which must be
obtained for the Project is currently estimated at over five million ($5,000,000) dollars. This
Agreement may be voided at the City's sole discretion, if the City is unable to reasonably obtain
financing at a sufficiently low rate as to ensure the feasibility of payment on such financing.
IRV N 19234 v4 6 - /6
-5-
6.2 Acquisition of All Parcels.
This Agreement is contingent on the City obtaining title to all parcels necessary to
construct the Parking Structure. City cannot agree in advance of any public hearing on a
resolution of necessity to condemn any parcels. Accordingly, City retains full rights to elect not
to proceed with the Project and not to exercise its powers of condemnation should any property
owner elect not to convey its parcel hereunder. Moreover, even should City be willing to
condemn, such legal action could introduce significant uncertainty to the financing due to the
costs of the legal action, delays, and risks of added expense.
6.3 No Damages for Inability to Obtain Financing.
The City shall investigate acquiring the parcels voluntarily and obtaining financing for
the Project in the amount specified in Section 6.1 above, or in another alternative amount
required to complete the Project; provided, however, that nothing herein shall be deemed to
create any expressed or implied obligation on the City, or its officials, agents, employees and
assignees to acquire the parcels or obtain financing, or subject the City, or its officials, agents,
employees and assignees to any damages to any Seller for delay, reliance, or obligations incurred
in anticipation or expectation that the Project would proceed as provided herein.
6.4 Termination.
In the event the contingencies provided in Sections 6.1 and 6.2 are not satisfied and the
City elects to terminate this Agreement, City will give written notice to Seller of its election to
terminate this Agreement. Such notice shall be given as soon as possible after City determines
that the contingency will not be met. In the event of such termination, the provisions of Section
3.4 shall apply.
7. CONVEYANCE OF TITLE.
City shall administer the transaction and accomplish the exchange of title when all
documents have been properly executed and all conditions necessary for conveyance have been
satisfied, as provided herein. It is intended that conveyance occur as provided in Section 10, but
only when City is ready to proceed with construction of the Parking Structure. Title shall be fee
simple merchantable without lien or encumbrance, except those approved pursuant to Section 11.
8. PAYMENT OF PURCHASE PIUCE.
Seller's Parcel is valued at one hundred ninety-one thousand ($191,000) dollars. City's
obligation to pay the purchase price will be deemed satisfied by the completion of the Parking
Structure and recordation of the Declaration, subject to the provisions for termination contained
in Section 3.4.
IRV#19234 v4
-6-
9. ADDITIONAL FUNDS AND DOCUMENTS REQUIRED FROM THE CITY AND
SELLER AND CITY.
9.1 Seller.
Seller agrees that on or before 12:00 noon on the day preceding the Closing Date, Seller
will deposit with City (i) an executed and recordable grant deed ("Grant Deed") conveying the
Parcel to the City, (ii) an executed and recordable Declaration and (iii) such funds and other
items and instruments as may be necessary to comply with this Agreement. The City Clerk will
cause the Grant Deed and Declaration to be recorded when all conditions in Section 13 have
been satisfied and the Title Policy in the; form described in Section I 1 below can be issued; but in
no event after the date specified in Section 10 below.
9.2 City
City agrees that on or before 12:00 noon on the date preceding the Closing Date, City
will deposit all documents (executed and recorded) which are necessary to comply with the terms
of this Agreement.
10. CLOSING DATE.
A. Conveyance shall occur, if possible, within sixty (60) days following execution of
this Agreement, but no later than July 31, 2003 (the "Closing Date") except as provided in
Section 3.4. The term "Closing" is used herein to mean the time Seller's Grant Deed is filed for
recording in the Office of the County Recorder of Riverside County, California.
B. In the event all parcels .are not in a condition to close by the Closing Date, the
City may delay the Closing Date until the conditions preventing closing have been satisfied, but
City shall not close on one parcel without being able to close on all parcels, unless City has
initiated condemnation on any parcel not subject to an acquisition agreement.
C. In the event any other conditions precedent to conveyance as specified in Section
13 have not been timely satisfied, the City may delay the Closing Date until the conditions
preventing closing have been satisfied.
D. In the event that City notifies Seller of desire to extend the Closing Date pursuant
to subsections B and C above, Seller may terminate this Agreement by giving written notice to
City, in which case the provisions of Section 3.4 shall apply.
E. In the event closing occurs during or before June 2002, but City is not able to
commence construction of the Parking Structure, then City shall lease the Parcel to Seller for
nominal rent with Seller responsible for all maintenance and liability until the City is prepared to
commence construction of the Parking Structure, as provided in Section 18.1.
IRV k19234 v4 _7_ /0 `�/
11. TITLE POLICY.
11.1 Approval of Title.
Promptly following execution of this Agreement, City will obtain a preliminary
title report issued through First American Title Company (the "Title Company"),
describing the state of title of the Parcel, together with copies of all exceptions specified
therein and a map plotting all easements specified therein (the "Preliminary Title
Report"). The City shall notify Seller in writing ("The City's Title Notice") of the City's
approval of all matters contained in the Preliminary Title Report or of any objections the
City may have to title exceptions or other matters ("Disapproved Exceptions") contained
in the Preliminary Title Report within fifteen (15) days after the City's receipt of the
Preliminary Title Report. If the City fails to deliver the City's Title Notice within said
fifteen (15) day period, the City shall be conclusively deemed to have disapproved the
Preliminary Title Report and all matters shown therein.
(a) In the event the City delivers the City's Title Notice within said period,
Seller shall have a period of five (5) days after receipt of the City's Title Notice in which
to notify the City of Seller's election to either (i) agree to attempt to remove the
Disapproved Exceptions prior to the Closing; or (ii) decline to remove any such
Disapproved Exceptions ("Seller's Notice"). Seller's failure to deliver Seller's Notice
within said five (5) day period shall be deemed Seller's election to decline to remove the
Disapproved Exceptions. If Seller notifies the City of its election to decline to remove
the Disapproved Exceptions, if Seller is deemed to have elected to decline to remove the
Disapproved Exceptions, or if Seller is unable to remove the Disapproved Exceptions, the
City may elect either to terminate this Agreement or to accept title to the Property subject
to the Disapproved Exception(s). The City shall exercise such election by delivery of
written notice to Seller within five (5) days following the earlier of(i) the date of written
advice from Seller that such Disapproved Exception(s) cannot be removed; or (ii) the
date Seller declines or is deemed to have declined to remove such Disapproved
Exception(s).
(b) Upon the issuance of any amendment or supplement to the Preliminary
Title Report which adds additional exceptions, the foregoing right of review and approval
shall also apply to said amendment or supplement, provided, however, that the City's
initial period of review and approval or disapproval of any such additional exceptions
shall be limited to ten(10) days following receipt of notice of such additional exceptions.
(c) Nothing to the contrary herein withstanding, the City shall be deemed to
have automatically objected to all leases, deeds of trust, mortgages, judgment liens,
federal and state income tax liens, delinquent general and special real property taxes and
assessments and similar monetary encumbrances affecting the Parcel, and Seller shall
discharge any such non-permitted title matter of record prior to or concurrently with the
Closing.
IRV#19234 v4
_g_
11.2 Title Policy.
At the Closing, the City shall obtain a CLTA Owner's Policy of Title Insurance (the
"Title Policy") for the City's interest, wherein the Title Company shall insure that title to the
Parcel shall be vested in the City, containing no exception to such title which has not been
approved or waived by the City in accordance with this Section 11. The Title Policy shall
include any available title insurance, extended coverage or endorsements that the City has
reasonably requested.
11.3 Encumbrances After Title Approval.
Seller shall not record any liens or encumbrances against the Parcel after the Approval of
Title, as described in Section 11.1, above, without the prior approval by the City. If title is
encumbered after City has approved title without the approval of City, Seller shall bear all cost,
expense and liability for restoring title to the condition originally approved by City and for any
loss or expense to the Project therefore.
12. DUE DILIGENCE.
12.1 Due Diligence Date.
The "Due Diligence Date" shall mean the date which is forty-five (45) days following the
execution of this Agreement.
12.2 Scope of Due Diligence.
The City shall have the right to make an analysis of the Parcel consisting of such
engineering, feasibility studies, soils tests, environmental studies and other investigations as the
City in its sole discretion may desire, to permit the City to determine the suitability of the Parcel
for the City's contemplated uses and to conduct such other review and investigation which the
City deems appropriate to satisfy itself to acquire the Parcel. The City shall further have the
right to make an examination of all licenses, permits, authorizations, approvals and governmental
regulations which affect the Parcel, including zoning and land use issues and conditions imposed
upon the Parcel by governmental agencies.
12.3 Review of Documents.
Upon the execution of this Agreement by both parties, Seller shall make available to the
City true, correct and complete copies of all contracts which relate to the Parcel (together with
any amendments or modifications thereto), and all reports in Seller's possession respecting the
physical condition of the Parcel, if any, and any other information in Seller's possession or
control reasonably requested by the City regarding the Parcel.
12.4 Entry for Investigation.
(a) Subject to the conditions hereafter stated, Seller grants to the City, its
agents and employees a limited license to enter upon any portion of the Parcel for the
purpose of conducting engineering surveys, soil tests, investigations or other studies
IRV 419234 0 _9_
reasonably necessary to evaluate the condition of the Parcel, which studies, surveys,
investigations and tests shall be done at the City's sole cost and expense.
(b) As a condition to the City's entry, inspection or testing, the City shall keep
the Parcel free and clear of all materialmen's liens, lis pendens and other liens arising out
of the entry and work performed under this Agreement. The City shall provide
reasonable notice to the Seller prior to entry for inspections or testing, and shall defend
and hold the Seller harmless from any liability claims, damages, or actions arising
therefrom.
12.5 Hazardous Materials.
To the best of Seller's knowledge, neither Seller nor any previous owner, tenant,
occupant, or user of the Parcel used, generated, released, discharged, stored, or disposed of any
hazardous waste, toxic substances, or related materials ("Hazardous Materials") on, under, in, or
about the Parcel, or transported any Hazardous Materials to or from the Parcel. Seller shall not
cause or permit the presence, use, generation, release, discharge, storage, or disposal of any
Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to
or from, the Parcel. The term "Hazardous Material" shall mean any substance, material or waste
which is or becomes regulated by any local governmental authority, the State of California, or
the United States Government, including, but not limited to, any material or substance which is
(i) defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste"
under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California
Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined
as "hazardous substance" under Section 25316 of the California Health and Safety Code,
Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii)
defined as "hazardous material," "hazardous substance," or "hazardous waste" under Section
25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Material
Release Response Plans and Inventory), (iv) defined as "hazardous substance" under Section
25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage
of Hazardous Substances), (v)petroleum or any petroleum product or fraction thereof or additive
thereto, (vi) asbestos, (vii) polychlorinated byphenyls, (viii) listed or defined as "hazardous" or
"extremely hazardous" under the California Code of Regulations, including pursuant to Title 22
of Division 4.5, Chapter 11 thereof, (ix) designated as a "hazardous substances" pursuant to
Section 311 of the Clean Water Act, (33 U.S.C. §1317), (x) defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et
seq. (42 U.S.C. §6903) or (xi) defined as a"hazardous substances"pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et
sec. (42 U.S.C. §9601).
12.6 Compliance with Environmental Laws.
To the best of Seller's knowledge the Parcel complies with all applicable laws and
governmental regulations including, without limitation, all applicable federal, state, and local
laws pertaining to air and water duality, hazardous waste, waste disposal, and other
environmental matters, including, but not limited to, the Clean Water, Clean Air, Federal Water
Pollution Control, Solid Waste Disposal, Resource Conservation and Recovery and
IRV#19234 V4 -10-
b -�
Comprehensive Environmental Quality Act, and the rules, regulations, and ordinances of the
City within which the subject property is located, the California Department of Health Services,
the Regional Water Quality Control Board, the State Water Resources Control Board, the
California Environmental Protection Agency, the U.S. Environmental Protection Agency, and all
applicable federal, state, and local agencies and bureaus.
12.7 Environmental Contingency.
The Closing shall be subject to and conditioned upon the City's approval of the
environmental conditions at, under and about the Parcel, and the absence from the Parcel of
Hazardous Materials and any other kind of soil or water contamination. The City may obtain a
Phase I and, if necessary, a Phase II Environmental Assessment Report, and may perform any
other testing the City deems necessary to determine whether the Parcel contains Hazardous
Materials or any other kind of contamination. City shall inform Seller of any contamination
discovered during the foregoing testing and either party may assume the cost of remediation, or
City may terminate this Agreement. If City closes without agreement from Seller to bear such
expense, then City shall be responsible for the cost of remediating any contamination known by
City to exist on the Parcel. Nothing herein waives any rights or causes of action City may have
against any party for remediating the cost of any contamination not known to City and
discovered after closing. Notwithstanding anything to the contrary in this Agreement, the parties
may agree to extend the Closing if they deem it necessary to allow for the completion of
environmental testing and/or remediation of the Parcel.
12.8 Approval of Due Diligence Matters.
The City shall notify Seller in writing ("The City's Due Diligence Notice") on or before
the Due Diligence Date of the City's approval or disapproval of the condition of the Parcel and
the City's investigations with respect thereto (excluding title matters which are to be approved or
disapproved pursuant to Section 11.1 above), which approval may be withheld in the City's sole
and absolute discretion. The City's failure to deliver the City's Due Diligence Notice on or
before the Due Diligence Date shall be conclusively deemed the City's disapproval thereof. The
City's disapproval or deemed disapproval of said matters shall automatically terminate this
Agreement.
13. CONDITIONS PRECEDENT TO CONVEYANCE.
13.1 Conditions to the City's Obligations.
The obligations of the City under this Agreement shall be subject to the satisfaction or
written waiver, in whole or in part, by the City of each of the following conditions precedent:
(a) Execution and delivery by Seller of Deed and Declaration.
(b) The City has approved in writing the condition to title and Title Company
will issue the Title Policy as required by Section 7 of this Agreement insuring title to the
Parcel vested in the City.
IRV N19234 v4 -11-
•
(c) The City has approved in writing all Due Diligence matters on or before
the Due Diligence Date.
(d) The City has obtained financing.
(e) The City has approved a construction contract for the Parking Structure.
(f) The City has entered acquisition agreements for all Parcels of the Site.
(g) Delivery to the City of the instruments and funds, if any, accruing to the
City pursuant to this Agreement.
13.2 Conditions to Seller's Obligations.
The obligations of Seller under this Agreement shall be subject to the satisfaction or
written waiver, in whole or in part, by Seller's delivery of the following pursuant to this
Agreement:
(a) Execution and delivery by City of Declaration.
(b) The City has approved in writing the condition to title and Title Company
will issue the Title Policy as required by Section 7 of this Agreement insuring title to the
Parcel vested in the City.
(c) City has approved in writing all Due Diligence matters on or before the
Due Diligence Date.
(d) Delivery to Seller of any temporary lease applicable until construction
commences.
(e) Delivery to the Seller of the instruments and funds, if any, accruing to the
Seller pursuant to this Agreement.
14. REPRESENTATIONS AND WARRANTIES.
14.1 Representations and Warranties.
Seller hereby makes the following representations and warranties to the City, each of
which, to the best of Seller's knowledge, is true as of the date hereof and shall be true on the date
of Closing on the Parcel:
(a) Seller has received no notice and/or has no knowledge that any
governmental authority or any employee or agent thereof considers any construction of
the proposed improvements on the Parcel or the present or proposed operation, use or
ownership of the Parcel to violate or have violated any ordinance, rule, law, regulation or
order of any government or agency, body or subdivision thereof, or that any investigation
has been commenced or is contemplated respecting such possible violations.
IRV#19234 v4 -12- 10 005=&
(b) There are no contracts, leases, claims or rights affecting the Parcel and no
agreements entered into by or under Seller shall survive the Closing that would adversely
affect the City's rights with respect to the Parcel except as heretofore disclosed in writing
by Seller to the City.
(c) Seller has received no written notice from any third parties, prior owners
of the Parcel, or any federal, state or local governmental agency, indicating that any
hazardous waste remedial or clem-up work will be required on the Parcel.
(d) Until the Closing, Seller shall not do anything which would impair or
encumber Seller's title to any of the Parcel.
(e) All utilities, including gas, electricity, water, sewage, and telephone, are
available at the property line of the Parcel, and all such items are in good working order.
(f) Until the Closing, if Seller learns of any fact or condition which would
cause any of the warranties and representations in this Section not to be true as of the
Closing, Seller shall immediately give written notice of such fact or condition to the City.
(g) Seller has the power and authority to execute, deliver and perform Seller's
obligations under this Agreement and the documents executed and delivered by Seller
pursuant hereto.
15. GENERAL PROVISIONS FOR CONVEYANCE.
15.1 General Provisions.
City Clerk shall deliver the Title Policy to the City and instruct the Riverside County
Recorder to mail the Grant Deed to the City at the address set forth in Section 18.5 after
recordation. All funds shall be administered by the City's Director of Finance and may be
deposited in the accounts of City with any bank doing business in Riverside County, California,
and shall be separately accounted from other City funds. All disbursements shall be made by
City check. This Agreement and any modifications, amendments, or supplements thereto may be
executed in counterparts and shall be valid and binding as if all of the parties' signatures were on
one document.
15.2 Proration of Real Property Taxes.
All nondelinquent general and special real property taxes shall be prorated to the Closing
on the basis of a thirty (30) day month and a three hundred sixty (360) day year. In the event that
property taxes are assessed on a parcel of real property which includes land other than the Parcel,
such proration shall include only taxes attributable to the Parcel, calculated in terms of total gross
square feet of land assessed pursuant to the tax statement versus total gross square footage of the
Parcel.
IRV N19234 v4 -13- I�7
15.3 Payment of Costs.
The City shall pay documentary transfer taxes, the premium charges for the standard
CLTA Title Policy and any non-standard coverage requested by the City, the charges for
drawing and recording the Grant Deed and Declaration. Seller shall pay any fees and costs
charged by any lender or other entity to obtain reconveyances or otherwise put title in the
condition described in Section 7, and all costs necessary to satisfy any condition of due diligence
that Seller has agreed to satisfy. All oidrer costs of Closing not otherwise specifically allocated
by this Agreement shall be paid by City.
15.4 Information Report.
The parties agree to cooperate with each other in completing any report ("Information
Report") and/or other information required to be delivered to the Internal Revenue Service
pursuant to Internal Revenue Code Section 6045(e) regarding the real estate sales transaction
contemplated by this Agreement, including without limitation, Internal Revenue Service Form
1099-B as such may be hereinafter modified or amended by the Internal Revenue Service, or as
may be required pursuant to any regulation now or hereinafter promulgated by the Treasury
Department with respect thereto. The City and Seller also agree that the City and Seller, their
respective employees and attorneys, and may disclose to the Internal Revenue Service, whether
pursuant to such Information Report or otherwise, any information regarding this Agreement or
the transactions contemplated herein as such party reasonably deems to be required to be
disclosed to the Internal Revenue Service by such party pursuant to Internal Revenue Code
Section 6045(e), and further agree that neither the City nor Seller shall seek to hold any such
party liable for the disclosure to the Internal Revenue Service of any such information.
16. BROKERAGE COMMISSIONS.
The City and Seller each represent and warrant to the other that no third party is entitled
to a broker's commission and/or finder's fee with respect to the transaction contemplated by this
Agreement. The City and Seller each agree to indemnify and hold the other parties harmless
from and against all liabilities, costs, damages and expenses, including, without limitation,
attorneys' fees, resulting from any claims or fees or commissions, based upon agreements by it, if
any, to pay a broker's commission and/or finder's fee.
17. RISK OF PHYSICAL LOSS.
Risk of physical loss to the Parcel shall be borne by Seller prior to the transfer of
possession or title and by the City thereafter. In the event that the Parcel shall be damaged by
fire, flood, earthquake or other casualty the City shall have the option to terminate this
Agreement, provided notice of such termination is delivered to Seller within twenty (20) days
following the date the City learns of the occurrence of such casualty. If the City fails to
terminate this Agreement pursuant to the foregoing sentence within said twenty (20) day period,
the City shall complete the acquisition of the Parcel, in which case Seller shall assign to the City
the interest of Seller in all insurance proceeds relating to such damage (subject to the rights of
tenants under leases of the Parcel). Seller shall consult with the City regarding any proposed
settlement with the insurer and the City shall have the reasonable right of approval thereof.
IRV#19234 v4 -14- )OW-SE
Seller shall hold such proceeds until the Closing. In the event this Agreement is terminated for
any reason, the City shall have no right to any insurance proceeds.
18. MISCELLANEOUS.
18.1 Possession.
Possession of the Parcel shall be delivered to the City at the close, provided that if for any
reason construction of the Parking Structure will not commence immediately after such closing,
Seller shall, through a lease with the City, retain possession with the right to use and maintain the
Parcel for parking after delivery of title and until commencement of construction, without
liability to City, until City gives written notice of the date of actual commencement of
construction, which date shall then be the date of transfer of possession.
18.2 No Conflict of Interest.
No officer or employee of the City shall have any financial interest, direct or indirect, in
this Agreement nor shall any such officer or employee participate in any decision relating to the
Agreement which effects his financial interest or the financial interest of any corporation,
partnership or association in which he is, directly or indirectly, interested, in violation of any
State statute or regulation. The Seller warrants that it has not paid or given and will not pay or
give any third party, other than Seller's real estate broker, any money or other consideration for
obtaining this Agreement.
18.3 Assignment.
Neither party shall have the right to assign this Agreement or any interest or right
hereunder without the prior written consent of the other party. Subject to the foregoing, this
Agreement shall be binding upon and shall inure to the benefit of the City and Seller and their
respective heirs, personal representatives, successors and assigns. The Seller shall have the right
to sell the Chop House Property and assign the rights and obligations under the Agreement to its
purchaser.
18.4 Attorneys' Fees.
In any action between the parties hereto, seeking enforcement of any of the terms and
provisions of this Agreement, or in connection with the Parcel, the prevailing party in such
action shall be entitled, to have and to recover from the other party its reasonable attorney's fees
and other reasonable expenses in connection with such action or proceeding, in addition to its
recoverable court costs.
18.5 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 or by mailing the same by registered or certified mail, return
receipt requested, to the party to whom 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:
IRV#19234 v4 -15-
To Seller: Mr. Zachary Pranks
To The City: Palm Springs Redevelopment Agency
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attention: Executive Director
Copy To: Burke, Williams & Sorensen, LLP
18301 Von Karman Avenue
Suite 1050
Irvine, CA 92612
Attn: David J. Aleshire, Esq.
18.6 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 neutral gender and the singular or plural number shall each
be deemed to include the others wherever and whenever the context so dictates.
18.7 No Waiver.
No delay or omission by either party hereto in exercising any right or power accruing
upon the compliance or failure of performance by the other party hereto under the provisions 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.
18.8 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.
18.9 Severability.
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, provisions, condition or covenant
to persons or circumstances other than those as to whom or which it is held invalid or
IRV#19234 v4 -16-
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.
18.10 Merger of Prior Agreements and Understandings.
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 to
contemporaneous agreements, understandings, representations and statements, oral or written,
are merged herein and shall be of no further force or effect.
18.11 No Withholding Because:Non-Foreign Seller.
Seller represents and warrants to the City that Seller is not, and as of the Closing will not
be, a foreign person within the meaning of Internal Revenue Code Section 1445 or an out-of-
state seller under California Revenue and Tax Code Section 18662 and that it will deliver to the
City on or before the Closing a non-foreign affidavit on standard form pursuant to Internal
Revenue Code Section 1445(b)(2) and the Regulations promulgated thereunder and a California
Form 590-RE.
18.12 Execution in Counterparts.
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.
[SIGNATURE PAGE TO FOLLOW]
IRV 419234 v4 -17- �7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement for Purchase
and Sale of Real Property and Instructions as of the date set forth above.
"SE �ER" Mr. ACHARY F
`By.
Its
"CITY..
ATTEST: CITY OF PALM SPRINGS, a municipal
corporation
City Clerk
By:
APPROVED AS TO FORM: Its: [Mayor] [City Manager]
BURKE, WILLIAMS & SORENSEN, LLP
David J. Aleshire
City Attorney
W�
IRV H19234 v4 _18_
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PARCEL "C"
LEGAL DESCRIPTION OF RESTRICTED PARCEL:
APN: 513-154-008
LOT 17 OF BLOCK 28 OF PALM SPRINGS TO WNSITE AS RECORDED IN MAP BOOK 9 AT PAGE
423,RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF RECORD IF ANY.
LEGAL DESCRIPTION OF BENEFIT PARCEL:
APN: 513-154-017
LOT 8 OF BLOCK 28 OF PALM SPRINGS TOWNSITE AS RECORDED IN MAP BOOK 9 AT PAGE
423,RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF RECORD IF ANY.
PREP BY
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PARKING STRUCTURE
LEGAL DESCRIPTION:
ALL THAT PORTION OF PARCEL I OF PARCEL MAP NO.13574 AS RECORDED IN PARCEL
MAP BOOK 73 AT PAGE 52,RECORDS OF RIVERSIDE COUNTY, CALIFORNIA AND ALL OF
LOTS 17 AND 18 AND A PORTION OF LOT 19 OF BLOCK 28 OF PALM SPRINGS TO WNSITE AS
RECORDED IN MAP BOOK 9 AT PAGE 423,RECORDS OF SAN DIEGO COUNTY, CALIFORNIA,
DESCRIBED AS FOLLOWS;
COMMENCING AT THE SOUTHEAST CORNER OF SAID PARCEL 11 THENCE NORTH 000-05'-
38" WEST ALONG THE EAST LINE OF SAID PARCEL 1 AND THE EAST LINE OF SAID LOTS 17,
18 AND 19 A DISTANCE OF 325.06 FEET;THENCE SOUTH 890-52'-48"WEST A DISTANCE OF
82.71 FEET;
THENCE NORTH 000-05'-27" WEST A DISTANCE OF 25.01 FEET TO THE NORTH LINE OF SAID
LOT 19;
THENCE SOUTH 890-52'-48"WEST ALONG SAID NORTH LINE A DISTANCE OF 62.62 FEET TO
THE NORTHWEST CORNER OF SAID LOT 19;
THENCE SOUTH 000-05'-27"EAST ALONG THE WEST LINE OF SAID LOTS 19, 18 17 AND
PORTION OF THE WESTERLY LINE OF SAID PARCEL 1 A DISTANCE OF 350.06 FEET TO THE
SOUTH LINE OF SAID PARCEL 1;
THENCE NORTH 890-53'-07"EAST ALONG SAID SOUTH LINE A DISTANCE OF 145.35 FEET TO
THE POINT OF BEGINNING.
SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF RECORD IF ANY.
PREPARED BY
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Level 2 Plan Level 3 Plan Level 4 Plan
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Family 61`�, �Trust TOP LEVEL 35 - 35 11,020 S.F.
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Property -� ° -� -_-���- a C LEVEL 3 121 — 121 37,658 S.F.
n C LEVEL 2 120 - 120 37.658 S.F.
GROUND LEVEL 92 11 103 37.658 S.F.
Chop House/ Deck = L1 1 �• R
4
TOTAL 388 11 379 123,994 S.F.
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Il. Parking Data
Village Pub PARKING STRUCTURE CAPACITY 379 STALLS
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H STALL WIDTH -STANDARD 9'-O.
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296 South iS
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Exhibit "C"
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EXHIBIT "E"
SCHEDULE OF PERFORMANCE
Items of Performance Time for Performance
1. Start Site Topographic Base Map and As Soon As Possible
Geotechnical Report After Approval
2. Complete Topographic Base Map & Within Thirty (30)
Geotechnical Report Days of Approval
3. Start Design-Build Scope Documents by As Soon As Possible
A/E Team After Approval
4. Complete Design-Build Scope Document Within Sixty (60)
Bid Package Days of Approval
5. Begin Bid Phase for Design Build Contractors As Soon As Possible
After Execution
6. Complete Bid Phase and Award Design-Build Contract Within Sixty(60)
Days of Execution
7. City obtains a Preliminary Title Report describing As Soon As Possible
the state of title of the Parcel. After Execution
8. City provides the Title Notice to Seller Within Fifteen(15)
Days of Receiving the
Preliminary Title
Report
9. Seller notifies the City that it accepts or declines Within Five (5) Days
to remove Disapproved Exceptions, if any. of Receiving the
City's Title Notice
10. Scheduled Date for Due Diligence Forty-Five (45) Days
After Execution
11. Scheduled Date for Closing Sixty (60)Days
After Execution
12. Begin Site Demolition and Construction Phase June 2002 or June
June 2003
6 -6�
13. Complete Site and Building Construction Phase November 14, 2002
or November 14,
2003
It is understood that the foregoing Schedule of Performance is subject to all of the
terms and conditions set forth in the text of the Agreement. The summary of the items of
performance in this Schedule of Performance is not intended to supersede or modify the
more complete description in the text; in the event of any conflict or inconsistency
between this Schedule of Performance and the text of the Agreement, the text shall
govern. Items marked for "Approval' are for illustrative and convenience purposes only
and are not intended to supersede or modify the Agreement.
Notwithstanding the foregoing, the City Manager shall have reasonable discretion
to extend the terms provided within the Schedule of Performance to conform with the
scheduling of the commencement of construction in either June 2002 or June 2003, as
provided in the Agreement.
IRv#17577 v1 _2_
EXHIBIT"B" TO PURCHASE AND SALE AGREEMENT 00-70
{ T
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
THE CITY OF PALM SPRINGS
3200 East Tahquitz Canyon Way
Palm Springs, California 92262
Attn: City Clerk
(Space Above For Recorder's Use)
AGREEMENT CONTAINING COVENANTS, CONDITIONS AND RESTRICTIONS
THIS AGREEMENT CONTAINING COVENANTS, CONDITIONS AND
RESTRICTIONS ("Agreement") is entered into this day of , 2002, by
and between ZACHARY FRANKS ("Owner") and the CITY OF PALM SPRINGS, a municipal
corporation("City").
RECITALS
A. Owner is the owner of certain real property located in the City of Palm Springs,
County of Riverside, State of California, commonly known as "The Chop House," bearing APN
Number 513-154-008 (the "Benefited Property"). The legal description of the Benefited
Property is set forth in the "Legal Description" attached hereto as Exhibit "A" and is shown in
the "Site Map" attached hereto as Exhibit "B", both of which exhibits are incorporated herein by
this reference.
B. The City is acquiring certain parcels of property to construct various parking
improvements adjacent to the Benefited Property, including surface parking to provide
approximately thirty-two (32) spaces and a three (3) level parking structure with approximately
three hundred eighty (380) spaces (the ":Parking Structure").
C. The Parking Structure is located on certain property described herein as the
"Parking Structure Property." The legal description of the Parking Structure Property is set forth
in Exhibit "A". The Parking Structure Property includes various parcels including a parcel
conveyed by Owner (the"Restricted Parcel"), which is legally described in Exhibit"A".
D. In exchange for the conveyance by Owner to City of the Restricted Parcel, the
City has agreed, among other things, to record this Agreement reserving certain parking rights in
the Parking Structure for the benefit of the Benefited Property, subject to certain obligations.
NOW, THEREFORE, the parties declare, covenant and agree, by and for themselves,
their heirs, executors and assigns, and all persons claiming under or through them that the
Restricted Parcel shall be held, transferred, encumbered, used, sold, conveyed, leased and
occupied subject to the covenants, restrictions and obligations hereinafter set forth, subject to the
obligations of the Owner of the Benefited Property to meet certain conditions as described
herein.
IRV N 19236 v7 _I
1.0 Allocation of Reserved Parking Spaces.
In consideration for conveyance of the Restricted Parcel to City to develop the
Parking Structure, and for the term designated in Section 9.1 below, the City agrees to allocate
reserved parking within the Parking Structure to the Benefited Property as provided herein. The
Benefited Property shall be provided with twenty-five (25) reserved parking spaces (the
"Reserved Spaces"), located as shown in the "Parking Restriction Plan" attached hereto as
Exhibit C and incorporated herein by this reference. The parking spaces provided herein are
"reserved" in the sense that a sign will be located on a particular space as to indicate that the
space is provided solely for the Benefited Property and for the Owner, tenants, business
occupants and invitees to the Benefited Property. No gates or other access mechanisms will be
provided to further restrict parking access to reserved spaces other than the signs described
above. Additionally, Owner or Owner's tenants or business occupants shall be permitted to
employ parking attendants and valets in the Parking Structure at their own expense to control
access to or use of the Reserved Spaces for restricted or valet parking purposes.
2.0 No Severance or Assignment of Reserved Parking Spaces.
The Reserved Spaces shall inure to the benefit of the Benefited Property only and
for the owners, tenants business occupants and invitees thereto; provided, however, that Owner
shall not sever or assign, the rights to the Reserved Spaces, which shall be deemed to run with
and benefit the Benefited Property and run with and burden the Parking Structure Property
pursuant to Section 9.
3.0 Restricted Parking and Zoning.
It is agreed between the parties that the Reserved Spaces shall be considered
towards meeting Owner's obligation to provide on-site parking spaces under the Palm Springs
Zoning Ordinance. In determining future uses of the Benefited Property, the Reserved Spaces
shall be counted as if they were still on-site spaces of the Benefited Property. Nothing herein
shall prevent the City from amending its zoning ordinance in the future concerning downtown
parking or the manner in which parking requirements are established or counted for-future
tenants, or to deny uses with insufficient parking, but Owner shall be entitled to count the
Reserved Spaces provided in this Agreement as if they were on-site spaces.
4.0 Obligations of City.
4.1 Condition of the Parking Structure. City shall maintain the Parking Structure
in good working order, reasonable wear and tear excepted. The City, as owner of the Parking
Structure, shall have the full and complete right to reconstruct, modify, rehabilitate, improve,
change or alter the Parking Structure, even if such work should temporarily restrict access to
parking spaces, provided that (i) City will give Owner reasonable prior notice of any such work,
(ii) City will make all reasonable efforts to minimize the disruption to parking within the Parking
Structure and adjoining businesses caused by such work during normal business hours, and (iii)
City will not reduce the number of Reserved Spaces.
IRV N 19236 v7 -2- ! • a.
4.2 Sign Program. Owner will have the right to participate in the City's sign
program to provide signage on the Parking Structure, which compensates Owner for loss of
visibility on Baristo Road and Indian Canyon Drive. The sign program will be subject to
Owner's approval and be approved by the Planning Commission; shall be in accordance with all
applicable laws, including, but not limited to, the Palm Springs Municipal Code and the Palm
Springs Zoning Code; and shall be compatible with the final design of the Parking Structure.
Signage will be provided on a rent free basis. City shall provide the space for said signage, but
shall not be obligated to compensate Owner for installation and maintenance costs for such
signage.
4.3 Trash. The City shall provide Owner with a reasonable site for trash
disposal, as specifically set forth in the Site Map, attached hereto as Exhibit "B." The trash
disposal area shall be accessible during normal business hours and Owner shall be responsible
for all disposal fees and for the proper disposal of trash to keep the trash area clean and sanitary.
The parties may enter a separate agreement concerning the trash storage area.
5.0 Obligations of Owner.
5.1 Compliance with Applicable Laws. Owner shall comply with all
ordinances, regulations and standards of the City applicable to the Benefited Property.
5.2 Notice to Tenants. Owner shall provide any proposed tenants of any
portion of the Benefited Property with a copy of this Agreement and shall include in any lease
agreement, a provision requiring tenant's compliance with the terms of this Agreement.
5.3 Insurance. The Owner shall procure and maintain, at its sole cost and
expense, in a form and content reasonably satisfactory to City, during the entire term of this
Agreement including any extension thereof, a policy of commercial general liability insurance
written on a per occurrence basis for bodily injury and property damage including coverage for
contractual liability, personal injury, broad form property damage, products and completed
operations, providing coverage for Owner's employees, agents, and invitees use of the Reserved
Spaces in the Parking Structure. The :policies shall be considered primary and shall name the
City of Palm Springs as additional insured in accordance with standard ISO additional insured
endorsement form CG2010(1185) or equivalent language. Upon request by City's Risk
Manager, Owner shall provide Risk Manager, with copies of such insurance coverage and shall
make adjustments necessary to maintain appropriate coverage.
6.0 Nondiscrimination.
There shall be no discrimination against or segregation of any person, or group of
persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Benefited
Property, or any part thereof, nor shall Owner, or any person claiming under or through it,
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees of the Benefited Property, or any part thereof.
IRV 419236 v7 -3- 6,o-73
7.0 Indemnification.
Each party agrees to indemnify the other, its officers, and employees against, and
will hold and save them and each of them harmless from, any and all actions, suits, claims,
damages to persons or property, losses, costs, penalties, obligations, errors, omissions or
liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person, firm or
entity arising out of or in connection with the acts or omissions of said party, its agents,
employees, subcontractors, or invitees hereunder, excluding such claims or liabilities arising
from the sole negligence or willful misconduct of the other party.
8.0 Enforcement.
8.1 Default and Opportunity to Cure. Failure or delay by either party to timely
perform any covenant of this Agreement constitutes a default under this Agreement, but only if
the party who so fails or delays does not commence to cure, correct or remedy such failure or
delay within thirty (30) days after receipt of a notice specifying such failure or delay, and that
party does not thereafter prosecute such cure, correction or remedy with diligence to completion.
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, or
imminent threat of personal injury, the injured party may not institute proceedings against the
party in default until thirty (30) days after giving such notice. Failure or delay in giving such
notice shall not constitute a waiver of any default, not shall it change the time of default.
8.2 Remedies.
A. General. Either party having complied with the provisions of Section 8.1
may institute action to cure, correct or remedy any default consistent with the proposes of this
Agreement. The parties acknowledge and agree that any material violation of this Agreement is
likely to result in immediate and irreparable harm for which monetary damages are likely to be
inadequate. The parties further agree not to pursue legal damages one against the other, except
as notices herein.
B. Equitable Remedies. If either party defaults hereunder by failing to
perform any of its obligations herein, each party agrees that the other shall be entitled to
equitable remedies including the judicial remedy of specific performance and injunctive relief
and each party agrees (subject to its reserved right to contest whether in fact a default does exist)
not to challenge or contest the appropriateness of such remedy. The parties further agree to take
every action possible expedite legal review of such issues.
C. No Termination. City expressly agrees that although this Agreement may
terminate pursuant to Section 9.0, City may not terminate due to default by Owner, but in
addition to all other remedies, shall have the remedies provided in subsection D of this Section.
D. City Right to Perform Work. After giving notice pursuant to Section 8.1,
and in lieu of judicial action pursuant to 8.2, City may correct any default through its employees,
agents or contractors by performing any action required of Owner and may then charge Owner
for its actual expenses for performing such work. Owner shall pay any such charges within
IRV 419236 v7 -4- r A
thirty (30) days after receiving written notice thereof, and shall pay interest for late payment
thereafter at the legal rate, provided that Owner may appeal the reasonableness or need for such
charges to the City Council at a public meeting, and in the event such appeal is rejected, may
contest charges judicially.
8.3 Law and Forum. The Laws of the State of California shall govern the
interpretation and enforcement of this Agreement. Actions must be instituted and maintained in
the Indio branch of the Superior Court of the County of Riverside, State of California, in any
other appropriate court in that county, or in the Federal District Court in the Central District of
California.
8.4 No Waiver. No delay or omission in the exercise of any right or remedy
by a non-defaulting party on any default shall impair such right or remedy or be construed as a
wavier. A parry's consent to or approval of any act by the other party requiring the party's
consent or approval shall not be deemed to waive or render unnecessary the other parry's consent
to or approval of any subsequent act. Any waiver by either party of any default must be in
writing and shall not be a waiver of any other default concerning the same or any other
provisions of this Agreement.
8.5 Prevailing Party Attorneys' Fees. In any action between the parties
seeking enforcement of any of the terms and provisions of this Agreement, the prevailing party
in such action shall be awarded, in addition to specific performance, injunctive or other relief, its
reasonable costs and expenses, including attorneys' fees.
9.0 Term and Reversion.
9.1 Term. The covenants, conditions and restrictions contained in this
Agreement shall remain in effect for a period of thirty (30) years from the date of this Agreement
and shall thereafter automatically be extended for additional periods of five (5) years, unless
prior to any such extension the City elects to terminate this Agreement by providing written
notice to Owner. In addition, this Agreement shall terminate if the Parking Structure is
destroyed, except as otherwise provided in Section 9.0. The covenants contained in Section 6.0
shall remain in effect for perpetuity.
9.2 Destruction, Closure and Replacement of Parking Structure on the
Restricted Parcel. Should the Parking Structure be totally or substantially destroyed or
permanently closed, either through peril or due to economic or functional obsolescence or other
cause, City shall have no obligation to Owner to replace such Parking Structure. City shall
determine within 180 days of such event, whether City intends to replace, restore, or repair the
Parking Structure or to permit reversion pursuant to Section 9.4, and shall promptly give Owner
written notice of such determination. In the event the City decides to replace such Parking
Structure, City shall do so with a substantially equivalent Parking Structure within one year of
the destruction or closure of the Parking Structure, and shall provide an equivalent number of
restricted parking spaces in the new structure to Owner as provided hereunder, and this
Agreement shall continue in full force and effect. If City determines not to replace, restore or
repair the Parking Structure, then this Agreement shall terminate immediately and the Restricted
Parcel shall be restored to Owner pursuant to Section 9.4. In the event of destruction or closure
IRV 919236 v7 -5- 7
as provided herein, until the Parking Structure is restored or replaced or reversion occurs under
Section 9.4, City shall endeavor to provide restricted parking spaces to Owner on a pro rata basis
with other owners, until the Parking Structure is replaced or restored to full operation.
9.3 Proceeds of Insurance or Condemnation. If during the term of this
Agreement the Parking Structure is destroyed by insured peril or taken by the exercise of the
power of eminent domain, Owner shall have no right to the receipt of the proceeds thereof, but
shall be entitled to exercise its power of reverter as described in Section 9.4. It is expressly
understood that this Agreement shall not be deemed an interest in real property.
9.4 Owner's Remedy of Reversion. In the event that the Parking Structure is
demolished and not replaced pursuant to Section 9.2 and this Agreement is terminated, then the
Restricted Parcel shall revert to the Owner of the Benefited Property, their heirs, successors and
assigns. The parties shall cooperate in recording quitclaim deeds or other necessary documents
for the City to convey the Restricted Parcel to Owner and to eliminate either party's interest in
this Agreement. The Restricted Parcel shall be returned in a similar physical condition as
conveyed, and free of all structures, improvements or conditions.
10.0 Covenants to Run With the Land.
10.1 Covenants Running With the Land. This Agreement is designed to create
equitable servitudes and covenants appurtenant to the Restricted Parcel and running with the
Benefited Property. The parties declare that the Restricted Parcel shall be held, sold, conveyed,
encumbered, hypothecated, leased, used, occupied and improved subject to the covenants,
conditions, restrictions and equitable servitudes, all of which are for the purposes of uniformly
enhancing or protecting the value, attractiveness and desirability of the Benefited Property and
the Restricted Parcel. The covenants, conditions, restrictions, reservations, equitable servitudes,
liens and charges set forth herein shall run with the Restricted Parcel and shall be binding upon
all persons having any right, title or interest in the Restricted Parcel, or any part thereof, their
heirs, successive owners and assigns; shall inure to the benefit of every portion of the Benefited
Property and any interest therein; shall be binding upon City, its successors and assigns and
successors in interest; City and Owner hereby declare their understanding and intent that the
burden of the covenants set forth herein touch and concern the land. City and Owner hereby
further declare their understanding and intent that the benefit of such covenants touch and
concern the land by enhancing and increasing the enjoyment and use of the Restricted Parcel by
the citizens of the City and by furthering the health, safety, welfare and convenience of the
residents of the City and the owners or tenants of the Benefited Property.
10.2 Agreement Between Owner and City. The parties hereby agree to hold,
sell, and convey their respective parcels subject to the covenants, conditions, restrictions and
reservations of this Agreement. The parties also grant each to the other the right and power to
enforce the covenants, conditions, restrictions and reservations contained in this Agreement
against the other party and all persons having any right, title or interest to their respective parcel,
or any part thereof,their heirs, successive owners and assigns.
7-7p
IRV#19236 v7 -6-
10.3 No Mortgages. Owner may not pledge, encumber, secure or otherwise
hypothecate any interest created by this Agreement, or any interest in the Restricted Parcel, for
purposes of obtaining financing or for any other purpose.
11.0 Miscellaneous.
11.1 Modification. This Agreement may not be modified, terminated or
rescinded, in whole or in part, except by a written instrument duly executed and acknowledged
by the parties hereto, their successors or assigns and duly recorded in the Office of the County
Recorder, County of Riverside.
11.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
11.3 Severability. The invalidity of or inability to enforce any provision of this
Agreement with respect to a particular party or set of circumstances shall not in any way affect
the validity and enforceability of any other provision hereof, or the same provision when implied
to another parry or to a different set of circumstances.
11.4 Notices. Any notice to be given under this Agreement shall be given by
personal delivery or by depositing the same in the United States Mail, certified or registered,
postage prepaid, at the following address:
City: City of Palm Springs
P.O. Box 2743
Palm Springs, CA 92263
Attn: City Clerk
With Copy to: Burke, Williams & Sorensen, LLP
18.301 Von Karman Ave, Suite 1050
Irvine, CA 92612
Attn: David J. Aleshire, Esq.
Owner:
With Copy to:
Any notice delivered personally shall be effective upon delivery. Any notice given by
mail as above provided shall be effective forty-eight (48) hours after deposit in the mails. Any
party may change address for notice by giving written notice of such change to the other party.
11.5 Counterparts. This Agreement may be executed in any number of
counterparts each of which shall be an original but all of which shall constitute one and the same
document.
IRV#19236 v7 -7-
11.6 Authority to Sign. The persons executing this Agreement on behalf of
the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly
authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing
this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the
entering into this Agreement does not violate any provision of any other Agreement to which
said party is bound.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
Mr. ZACHARY FRANKS
By:
Its:
Its:
"Owner"
[OWNER'S SIGNATURE MUST BE NOTARIZED]
b-78
IRV 419236 v7 _8_
ATTEST: CITY OF PALM SPRINGS,
a municipal corporation
By: By:
City Clerk City Manager
APPROVED AS TO FORM: RECOMMENDED:
BURKE, WILLIAMS & SORENSEN, LLP
By:
David J. Aleshire, Director of Public Works
City Attorney
APPROVED AS TO OWNERSHIP AND
LEGAL DESCRIPTION
IRV k19236 v7 _9_
STATE OF CA.L lFr'�-.��.T?:e )
ss.
COUNTY OF MA'('l-d )
On �1Gi�F �a a1 '�r�,, before me, l VkA ( . J�G,5�g�Csw , Notary Public,
personally appeared �' L-P"L% I 1 2a�� �r a J
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/herhhoir authorized capacity(ies), and that by his/her/ttieAr
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL] COLETTE T. BOSQUE
Exi:,iralion Date: October 11, 2002
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PARCEL "C"
LEGAL DESCRIPTION OF RESTRICTED PARCEL:
APN: 513-154-008
LOT 17 OF BLOCK 28 OF PALM SPRINGS TOWNSITE AS RECORDED IN MAP BOOK 9 AT PAGE
423,RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF RECORD IF ANY.
LEGAL DESCRIPTION OF BENEFIT PARCEL:
APN: 513-154-017
LOT 8 OF BLOCK 28 OF PALM SPRINGS TOWNSITE AS RECORDED IN MAP BOOK 9 AT PAGE
423,RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF RECORD IF ANY.
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PARKEVG STRUCTURE
LEGAL DESCRIPTION:
ALL THAT PORTION OF PARCEL 1 OF PARCEL MAP NO.13574 AS RECORDED IN PARCEL
MAP BOOK 73 AT PAGE 52,RECORDS OF RIVERSIDE COUNTY, CALIFORNIA AND ALL OF
LOTS 17 AND 18 AND A PORTION OF LOT 19 OF BLOCK 28 OF PALM SPRINGS TOWNSITE AS
RECORDED IN MAP BOOK 9 AT PAGE 423,RECORDS OF SAN DIEGO COUNTY, CALIFORNIA,
DESCRIBED AS FOLLOWS;
COMMENCING AT THE SOUTHEAST CORNER OF SAID PARCEL 1,THENCE NORTH 000-05'-
38" WEST ALONG THE EAST LINE OF SAID PARCEL 1 AND THE EAST LINE OF SAID LOTS 17,
18 AND 19 A DISTANCE OF 325.06 FEET;THENCE SOUTH 890-52'-48"WEST A DISTANCE OF
82.71 FEET;
THENCE NORTH 000-05'-27" WEST A.DISTANCE OF 25.01 FEET TO THE NORTH LINE OF SAID
LOT 19;
THENCE SOUTH 890-52'48"WEST ALONG SAID NORTH LINE A DISTANCE OF 62.62 FEET TO
THE NORTHWEST CORNER OF SAID LOT 19;
THENCE SOUTH 000-05'-27"EAST ALONG THE WEST LINE OF SAID LOTS 19, 18 17 AND
PORTION OF THE WESTERLY LINE OF SAID PARCEL I A DISTANCE OF 350.06 FEET TO THE
SOUTH LINE OF SAID PARCEL 1;
THENCE NORTH 890-53'-07"EAST ALONG SAID SOUTH LINE A DISTANCE OF 145.35 FEET TO
THE POINT OF BEGINNING.
SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF RECORD IF ANY.
PREPARED BY
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AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND
INSTRUCTIONS (this "Agreement") is made this day of �2�-2002, by and between
the CITY OF PALM SPRINGS, a municipal corporation("City"), and C.H.I.C., LLC ('Seller").
RECITALS:
A. The City desires to construct various parking improvements, including a multi-
level parking structure, within a site bounded by Palm Canyon Drive, Indian Canyon Drive,
Baristo Road and Arenas Road, and as more specifically shown as the "Site" on the "Site Plan"
attached hereto as Exhibit B and incorporated herein by this reference.
B. The parking improvements include reconstructing the surface parking to provide
approximately thirty-two (32) spaces and constructing a three (3) level parking structure with
approximately three hundred eighty (380) spaces. All of such improvements are collectively
referred to as the "Project" and are depicted in the "Plan of Improvement" attached as Exhibit C
and incorporated herein by this reference.
C. The Site is divided into various parcels, some of which will be developed with
surface parking and others which will be developed with the parking structure. Those parcels to
be acquired by the City are shown on the Site Plan (Exhibit B).
D. Some of the parcels to be acquired currently provide surface parking for the
businesses located on such parcels. In consideration for the property owner's conveyance of the
parcel or portion thereof necessary for the Project, the City will agree: (1) to construct the
Project, (2) to restrict a portion of the parking spaces as provided herein, and (3) to deem such
restricted parking as satisfying the property's obligation to provide parking for various
commercial uses pursuant to the zoning ordinance.
E. Seller is the current owner of real property and improvements commonly known
as "The Village Pub," located in the City of Palm Springs, County of Riverside, bearing APN
Number 513-154-034 (the "Village Pub Property"). Seller and any successor in interest to fee
title the Village Pub Property shall sometimes be referred to here in as "Owner." The pertinent
portion of the Village Pub Property that is being conveyed to the City for the purposes of the
Project and consists of approximately 7,300 square feet of paved surface parking, as more
particularly shown in the "Parcel Map" as Parcel "B" and as described in the "Legal
Descriptions" attached hereto as Exhibit "A," and incorporated herein by this reference. Parcel
B is also referred to herein as the "Parcel." Additionally, the Village Pub Property has also been
assessed and in-lieu fees have been previously paid with a current assessed value of$48,000 to
the City for parking improvements to benefit the Village Pub Property (the "Assessment").
�18(
IRV 418914 v9 -1-
F. In consideration for the Assessment and for Seller conveying the Parcel to City by
the time provided herein, City agrees to restrict the parking area as shown in the "Parking
Restriction Plan" attached as Exhibit D and incorporated herein by this reference.
G. The Project will be developed in accordance with the schedule shown in the
"Schedule of Performance" attached hereto as Exhibit E and incorporated herein by this
reference. In the event City fails to commence constructing the Project pursuant to Section 3.4
or thereafter demolishes the Project, the Property will be restored to the owner without liability
to either parry, as specifically set forth under Section 3.4, below.
H. Certain restrictions herein run with the land and are contained in the "Agreement
containing Covenants, Conditions and Restrictions" attached hereto as Exhibit F and
incorporated by this reference (the "Declaration").
NOW, THEREFORE, the parties hereto agree as follows:
TERMS AND CONDITIONS
I. PURCHASE AND SALE OF PROPERTY.
The City hereby agrees to purchase from Seller, and Seller agrees to sell to the City the
Parcel, upon the terms and conditions hereinafter set forth.
2. DESCRIPTION OF THE PARKING FACILITY.
The Site shall be improved with a public parking facility consisting of three levels and
approximately three hundred eighty (380) spaces (the "Parking Structure"). The bottom level of
the Parking Structure shall be designated for business parking, to replace the parking areas
contributed to the Project by the adjacent business owners, including for Seller's respective
businesses, as provided under this Agreement. The business parking shall be reserved as further
described in Section 4. The specific design of the Parking Structure is attached hereto in the Plan
of Improvement(Exhibit "C").
3. SCHEDULE OF PERFORMANCE.
3.1 Timing of Construction.
The Project will be undertaken in accordance with the Schedule of Performance (Exhibit
"E"). City shall use a regular public improvement bid process or design build process to cause
the Parking Structure, which is estimated to take six (6) months to construct, to be constructed in
the off-season. However, the process of designing the Parking Structure and awarding the
contract may not be concluded in time to allow construction to be commenced and completed in
the 2002 off-season. Accordingly, construction may only commence during the month of June in
2002 or 2003 (the "Commencement Dates"), except as otherwise provided in Section 3.4. City
shall make best efforts to commence construction during 2002, and to complete construction
prior to November 15 of any year in which construction is commenced. City will use reasonable
efforts to coordinate the concurrent closing on all parcels necessary to the Project in accordance
IRV 418814 v9 -2- ' in
with Section 10, so that the Project can be constructed in accordance with the terms set forth
under Section 3.4, below.
3.2 Efforts to Minimize Business Disruption.
During the course of construction, the City will make best efforts to minimize business
disruption, but Seller understands that City must take all actions necessary to complete
construction prior to November 15 of the year in which construction is commenced. City will
maintain a reasonable pedestrian service corridor to the back of Seller's building, but this service
corridor will not provide for vehicular access. During the period of Project construction, the
Seller, Seller's tenants and invitees will have no designated parking, but City will use reasonable
efforts to develop a temporary parking plan which will be sensitive to the parking deficiencies
which will exist during construction.
3.3 Waiver of Damages for Delay.
The City shall take reasonable and appropriate actions to ensure completion of the
Parking Structure within six (6) months of commencing construction. However, nothing herein
shall be construed as an express or implied guarantee as to the date of completion of the Parking
Structure, or subject the City or its officers, agents, assignees, and employees to damages,
including liquidated damages, damages for business disruption, or other damages, if the Parking
Structure is not completed in conformance with the timelines set forth in the Schedule (Exhibit
«E„
3.4 Failure to Timely Commence Construction.
Should City fail to commence construction by June 30, 2003 (except as provided herein),
or should City earlier abandon the Project prior to commencing construction then, this
Agreement, including the Declaration, shall be automatically terminated and, if closing has
occurred, City shall within sixty (60) days thereafter reconvey the Parcel to Seller, except as
provided in Section 10. All rights and obligations which either party shall have hereunder,
including to exchange property, to construct parking improvements, to provide restricted parking
areas, and all other matters shall terminate and neither party shall have any right or liability
against the other except: (i) City shall have the obligation to return the Parcel in the same
condition it was received, and (ii) this waiver of liability shall survive termination.
Notwithstanding the foregoing, the City may commence construction as much as thirty (30) days
after the Commencement Dates, so long as there is a reasonable expectation that the Project can
timely be completed prior to November 15.
IRV#18814 v9 -3-
y�
4. COMPENSATION TO SELLER THROUGH ASSIGNMENT OF RESERVED
PARKING SPACES.
In consideration for the Parcel, the City agrees to allocate reserved parking to the Seller's
property for so long as the Parking Structure remains open and operating as provided herein and
subject to the provisions of the Declaration. The following allocations of reserved parking
spaces are based on the combined land value and in lieu fees previously paid by the Seller as
specifically set forth under Section 4.2, below.
4.1 Definition of"Reserved" Parking Spaces.
The parking spaces provided herein are "reserved" in the sense that a sign will be located
on a particular space as to indicate that the space is provided solely for the use of Seller, Seller's
business occupants or invitees. No gates or other access mechanisms will be provided to further
restrict parking access to reserved spares on the first level of the Parking Structure, other than
the signs described above. It is understood that the Owner, at Owner's expense, may employ
parking attendants and valets in order to control usage of the parking spaces and provide valet
service, who will comply with all City rules and regulations governing the use of the Parking
Structure.
4.2 Specific Allotment of Reserved Parking to Seller's Property.
In consideration for Parcel B and the Assessment, the Village Pub Property will be
provided with twenty-one (21) reserved parking spaces (the "Reserved Spaces") on the first level
of the Parking Structure, as depicted in"Parking Restriction Plan," (Exhibit D).
4.3 No Assignment of Rights.
The allocation of parking spaces described in Section 4.2, above, shall inure to the benefit
of the Owner, for the benefit of itself, its lessees, sublessees, business occupants and invitees;
provided, however, that Owner shall not sever or assign via lease agreement or otherwise, the
rights to the parking allocations as provided under Section 4.2 above, which shall be deemed to
run with the benefited parcel. Nothing herein shall restrict the Owner from assigning parking
space for the lessees and sublessees, business occupants and invitees of the Village Pub Property.
4.4 Signage and Display Windows.
Seller will have the right to participate in the City's sign program to provide signage on
the Parking Structure, which provides compensation to the Seller for loss of visibility on Baristo
Road and Indian Canyon Drive. The sign program will be subject to the Seller's approval and
signage will be provided on a rent free basis and in accordance with all applicable laws,
including, but not limited to, the Palm Springs Municipal Code and the Palm Springs Zoning
Code, and subject to the final design of the Parking Structure.
4.5 Restricted Parking and.Zoning.
It is agreed between the parties that the restricted parking spaces shown in the Parking
Restriction Plan (Exhibit D) shall be considered to meet Seller's obligation to provide on-site
IRV#19914 v9 _4_
19'617
parking spaces under the Palm Springs Zoning Ordinance. In determining future uses of the
Seller's remaining property, the parking spaces provided in the Declaration shall be counted as if
they were still on-site spaces. Nothing herein shall prevent the City from amending its zoning
ordinance in the future concerning downtown parking or the manner in which parking
requirements are established or counted for future tenants, or to deny uses with insufficient
parking, but Seller shall be entitled to count the restricted spaces provided in the Declaration for
Seller's parcel as if they were on-site spaces.
5. WAIVER OF ADDITIONAL COMPENSATION OR DAMAGES.
Seller agrees to accept the consideration provided herein as full and complete
compensation for the value of the Parcel conveyed to City hereby. In this regard, Seller is aware
of the appraisal obtained by City and has had the right to consult other appraisers, attorneys and
other advisors of Seller's choosing. In executing this Agreement, Seller waives the right to
receive any other compensation for fixtures and equipment, business goodwill, severance,
inverse condemnation, pre-condemnation and all other elements of compensation whatsoever,
whether known or unknown.
Through execution of this Agreement, and with respect to compensation for conveyance
of the Restricted Parcel described above, Seller further waives, releases and forever discharges
claims both known and unknown as provided herein, Seller expressly waives any and all rights
under California Civil Code Section 1542, which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
With respect to the matters released hereunder, Seller waives and relinquishes any and all
rights and benefits which they have or may have under Section 1542 of the Civil Code of the
State of California, and Seller acknowledges it is aware that it may hereafter discover facts in
addition to or different than those which it now knows or believes to be true with respect to the
claims, allegations, events and facts set forth in the Recitals herein, but it is the Seller's intention
hereby to frilly and finally release any and all matters, disputes, and differences, known or
unknown, suspected or unsuspected, which now exist, may exist, or heretofore have existed; as
against the each other, and in furtherance of this intention, the release herein given shall be and
remain in effect as a full and complete general release notwithstanding discovery or existence of
any such additional or different facts.
Initials
IRV#18814 v9 _5_ ,�
6. FINANCING AND ACQUISITION OF PARCELS.
6.1 Agreement Contingent on Financing.
This Agreement is contingent on the City's ability to obtain sufficient financing as to
finance the actual construction of the Parking Structure. The requisite financing which must be
obtained for the Project is currently estimated at over five million ($5,000,000) dollars. This
Agreement may be voided at the City's sole discretion, if the City is unable to reasonably obtain
financing at a sufficiently low rate as to ensure the feasibility of payment on such financing.
6.2 Acquisition of All Parcels.
This Agreement is contingent on the City obtaining title to all parcels necessary to
construct the Parking Structure. City cannot agree in advance of any public hearing on a
resolution of necessity to condemn any parcels. Accordingly, City retains full rights to elect not
to proceed with the Project and not to exercise its powers of condemnation should any property
owner elect not to convey its parcel hereunder. Moreover, even should City be willing to
condemn, such legal action could introduce significant uncertainty to the financing due to the
costs of the legal action, delays, and risks of added expense.
6.3 No Damages for Inability to Obtain Financing.
The City shall investigate acquiring the parcels voluntarily and obtaining financing for
the Project in the amomit specified in Section 6.1 above, or in another alternative amount
required to complete the Project; provided, however, that nothing herein shall be deemed to
create any expressed or implied obligation on the City, or its officials, agents, employees and
assignees to acquire the parcels or oblain financing, or subject the City, or its officials, agents,
employees and assignees to any damages to any Seller for delay, reliance, or obligations incurred
in anticipation or expectation that the Project would proceed as provided herein.
6.4 Termination.
In the event the contingencies provided in Sections 6.1 and 6.2 are not satisfied and the
City elects to terminate this Agreement, City will give written notice to Seller of its election to
terminate this Agreement. Such notice shall be given as soon as possible after City determines
that the contingency will not be met. ]In the event of such termination, the provisions of Section
3.4 shall apply.
7. CONVEYANCE OF TITLE.
City shall administer the transaction and accomplish the exchange of title when all
documents have been properly executed and all conditions necessary for conveyance have been
satisfied, as provided herein. It is intended that conveyance occur as provided in Section 10, but
only when City is ready to proceed with construction of the Parking Structure. Title shall be fee
simple merchantable without lien or encumbrance, except those approved pursuant to Section 11.
IRV r i
�avuissia v9 -6-
8. PAYMENT OF PURCHASE PRICE.
Seller's Parcel is valued at one hundred ninety-one thousand ($191,000) dollars. City's
obligation to pay the purchase price will be deemed satisfied by the completion of the Parking
Structure and recordation of the Declaration, subject to the provisions for termination contained
in Section 3.4.
9. ADDITIONAL FUNDS AND DOCUMENTS REQUIRED FROM THE CITY AND
SELLER AND CITY.
9.1 Seller.
Seller agrees that on or before 12:00 noon on the day preceding the Closing Date, Seller
will deposit with City (i) an executed and recordable grant deed ("Grant Deed") conveying the
Parcel to the City, (ii) an executed and recordable Declaration and (iii) such funds and other
items and instruments as may be necessary to comply with this Agreement. The City Clerk will
cause the Grant Deed and Declaration to be recorded when all conditions in Section 13 have
been satisfied and the Title Policy in the form described in Section 11 below can be issued; but in
no event after the date specified in Section 10 below.
9.2 City
City agrees that on or before 12:00 noon on the date preceding the Closing Date, City
will deposit all documents (executed and recorded) which are necessary to comply with the terms
of this Agreement.
10. CLOSING DATE.
A. Conveyance shall occur, if possible, within sixty (60) days following execution of
this Agreement, but no later than June 30, 2003 (the "Closing Date") except as provided in
Section 3.4. The term "Closing" is used herein to mean the time Seller's Grant Deed is filed for
recording in the Office of the County Recorder of Riverside County, California.
B. In the event all parcels are not in a condition to close by the Closing Date, the
City may delay the Closing Date until the conditions preventing closing have been satisfied, but
City shall not close on one parcel without being able to close on all parcels, unless_City. has
initiated condemnation on any parcel not subject to an acquisition agreement.
C. In the event any other conditions precedent to conveyance as specified in Section
13 have not been timely satisfied, the City may delay the Closing Date until the conditions
preventing closing have been satisfied.
D. In the event that City notifies Seller of its desire to extend the Closing Date
pursuant to subsections B and C above, Seller may terminate this Agreement by giving written
notice to City, in which case the provisions of Section 3.4 shall apply.
E. In the event closing occurs during or before .Tune 2002, but City is not able to
commence construction of the Parking Structure, then City shall lease the Parcel to Seller for
IRV#18814 v9 -7-
b so,
f2m.
nominal rent with Seller responsible for all maintenance and liability until the City is prepared to
commence construction of the Parking Structure, as provided in Section 18.1.
11. TITLE POLICY.
11.1 Approval of Title.
(a) Promptly following execution of this Agreement, City will obtain a
preliminary title report issued through First American Title Company (the "Title
Company"), describing the state of title of the Parcel, together with copies of all
exceptions specified therein and a map plotting all easements specified therein (the
"Preliminary Title Report"). The City shall notify Seller in writing ("The City's Title
Notice") of the City's approval of all matters contained in the Preliminary Title Report or
of any objections the City may have to title exceptions or other matters ("Disapproved
Exceptions") contained in the Preliminary Title Report within fifteen (15) days after the
City's receipt of the Preliminary Title Report. If the City fails to deliver the City's Title
Notice within said fifteen (15) day period, the City shall be conclusively deemed to have
disapproved the Preliminary Title Report and all matters shown therein.
(b) In the event the City delivers the City's Title Notice within said period,
Seller shall have a period of five (5) days after receipt of the City's Title Notice in which
to notify the City of Seller's election to either (i) agree to attempt to remove the
Disapproved Exceptions prior to the Closing; or (ii) decline to remove any such
Disapproved Exceptions ("Seller's Notice"). Seller's failure to deliver Seller's Notice
within said five (5) day period shall be deemed Seller's election to decline to remove the
Disapproved Exceptions. If Seller notifies the City of its election to decline to remove
the Disapproved Exceptions, if Seller is deemed to have elected to decline to remove the
Disapproved Exceptions, or if Seller is unable to remove the Disapproved Exceptions,the
City may elect either to terminate this Agreement or to accept title to the Property subject
to the Disapproved Exception(s). The City shall exercise such election by delivery of
written notice to Seller within five (5) days following the earlier of(i) the date of written
advice from Seller that such Disapproved Exception(s) cannot be removed; or (ii) the
date Seller declines or is deemed to have declined to remove such Disapproved
Exception(s).
(c) Upon the issuance of any amendment or supplement to the Preliminary '
Title Report which adds additional exceptions, the foregoing right of review and approval
shall also apply to said amendment or supplement, provided, however, that the City's
initial period of review and approval or disapproval of any such additional exceptions
shall be limited to ten (10) days following receipt of notice of such additional exceptions.
(d) Nothing to the contrary herein withstanding, the City shall be deemed to
have automatically objected to all leases, deeds of trust, mortgages, judgment liens,
federal and state income tax liens, delinquent general and special real property taxes and
assessments and similar monetary encumbrances affecting the Parcel, and Seller shall
discharge any such non-permitted title matter of record which it has agreed to remove
pursuant to subparagraph (b), above, prior to or concurrently with the Closing.
IRV S 18814 v9 -8- 109. 3
11.2 Title Policy.
At the Closing, the City shall obtain a CLTA Owner's Policy of Title Insurance (the
"Title Policy") for the City's interest, wherein the Title Company shall insure that title to the
Parcel shall be vested in the City, containing no exception to such title which has not been
approved or waived by the City in accordance with this Section 11. The Title Policy shall
include any available title insurance, extended coverage or endorsements that the City has
reasonably requested.
11.3 Encumbrances After Title Approval.
Seller shall not record any liens or encumbrances against the Parcel after the Approval of
Title, as described in Section 11.1, above, without the prior approval by the City. If title is
encumbered after City has approved title without the approval of City, Seller shall bear all cost,
expense and liability for restoring title to the condition originally approved by City and for any
loss or expense to the Project therefore.
12. DUE DILIGENCE.
12.1 Due Diligence Date.
The "Due Diligence Date" shall mean the date which is forty-five (45) days following the
execution of this Agreement.
12.2 Scope of Due Diligence_
The City shall have the right to make an analysis of the Parcel consisting of such
engineering, feasibility studies, soils tests, environmental studies and other investigations as the
City in its sole discretion may desire, to permit the City to determine the suitability of the Parcel
for the City's contemplated uses and to conduct such other review and investigation which the
City deems appropriate to satisfy itself to acquire the Parcel. The City shall further have the
right to make an examination of all licenses, permits, authorizations, approvals and governmental
regulations which affect the Parcel, including zoning and land use issues and conditions imposed
upon the Parcel by governmental agencies.
12.3 Review of Documents.
Upon the execution of this Agreement by both parties, Seller shall make available to the
City true, correct and complete copies of all contracts which relate to the Parcel (together with
any amendments or modifications thereto), and all reports in Seller's possession respecting the
physical condition of the Parcel, if any, and any other information in Seller's possession or
control reasonably requested by the City regarding the Parcel.
12.4 Entry for Investigation.
(a) Subject to the conditions hereafter stated, Seller grants to the City, its
agents and employees a limited license to enter upon any portion of the Parcel for the
purpose of conducting engineering surveys, soil tests, investigations or other studies
IRV fE 18814 v9 -9-
reasonably necessary to evaluate the condition of the Parcel, which studies, surveys,
investigations and tests shall be done at the City's sole cost and expense.
(b) As a condition to the City's entry, inspection or testing, the City shall keep
the Parcel free and clear of all materialmen's liens, lis pendens and other liens arising out
of the entry and work performed under this Agreement. The City shall provide
reasonable notice to the Seller prior to entry for inspections or testing, and shall defend
and hold the Seller harmless from any liability, claims, damages, or actions arising
therefrom.
12.5 Hazardous Materials.
To the best of Seller's knowledge, neither Seller nor any previous owner, tenant,
occupant, or user of the Parcel used, generated, released, discharged, stored, or disposed of any
hazardous waste, toxic substances, or related materials ("Hazardous Materials") on, under, in, or
about the Parcel, or transported any Hazardous Materials to or from the Parcel. Seller shall not
cause or permit the presence, use, generation, release, discharge, storage, or disposal of any
Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to
or from, the Parcel. The term "Hazardous Material" shall mean any substance, material or waste
which is or becomes regulated by any local governmental authority, the State of California, or
the United States Government, including, but not limited to, any material or substance which is
(i) defined as a"hazardous waste," "extremely hazardous waste," or "restricted hazardous waste"
under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California
Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined
as "hazardous substance" under Section 25316 of the California Health and Safety Code,
Division 20, Chapter 6.8 (Carpenter-Presley-Tamer Hazardous Substance Account Act), (iii)
defined as "hazardous material," "hazardous substance," or "hazardous waste" under Section
25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Material
Release Response Plans and Inventory), (iv) defined as "hazardous substance" under Section
25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage
of Hazardous Substances), (v) petroleum or any petroleum product or fraction thereof or additive
thereto, (vi) asbestos, (vii) polychlorinated byphenyls, (viii) listed or defined as "hazardous" or
"extremely hazardous" under the California Code of Regulations, including pursuant to Title 22
of Division 4.5, Chapter 11 thereof, (ix) designated as a "hazardous substances" pursuant to
Section 311 of the Clean Water Act, (33 U.S.C. §1317), (x) defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et
seg. (42 U.S.C. §6903) or (xi) defined as a"hazardous substances"pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et
sec. (42 U.S.C. §9601).
12.6 Compliance with Environmental Laws.
To the best of Seller's knowledge the Parcel complies with all applicable laws and
governmental regulations including, without limitation, all applicable federal, state, and local
laws pertaining to air and water quality, hazardous waste, waste disposal, and other
environmental matters, including, but not limited to, the Clean Water, Clean Air, Federal Water
Pollution Control, Solid Waste Disposal, Resource Conservation and Recovery and
IRV NI88I4 v9 _10_ to �f Y�
Comprehensive Environmental Quality Act, and the rules, regulations, and ordinances of the
City within which the subject property is located, the California Department of Health Services,
the Regional Water Quality Control Board, the State Water Resources Control Board, the
California Environmental Protection Agency, the U.S. Environmental Protection Agency, and all
applicable federal, state, and local agencies and bureaus.
12.7 Environmental Contingency.
The Closing shall be subject to and conditioned upon the City's approval of the
environmental conditions at, under and about the Parcel, and the absence from the Parcel of
Hazardous Materials and any other kind of soil or water contamination. The City may obtain a
Phase I and, if necessary, a Phase II Environmental Assessment Report, and may perform any
other testing the City deems necessary to determine whether the Parcel contains Hazardous
Materials or any other kind of contamination. City shall inform Seller of any contamination
discovered during the foregoing testing and either party may assume the cost of remediation, or
City may terminate this Agreement. If City closes without agreement from Seller to bear sgch _
expense, then City shall be responsible for the cost of remediating any contamination or
environmental conditions on the Parcel of which the City has notice as of the Closing. Nothing
herein waives any rights or causes of action City may have against any party for remediating the
cost of any contamination or environmental conditions discovered after closing.
Notwithstanding anything to the contrary in this Agreement, the parties may agree to extend the
Closing if they deem it necessary to allow for the completion of environmental testing and/or
remediation of the Parcel.
12.8 Approval of Due Diligence Matters.
The City shall notify Seller in writing ("The City's Due Diligence Notice") on or before
the Due Diligence Date of the City's approval or disapproval of the condition of the Parcel and
the City's investigations with respect thereto (excluding title matters which are to be approved or
disapproved pursuant to Section 11.1 above), which approval may be withheld in the City's sole
and absolute discretion. The City's failure to deliver the City's Due Diligence Notice on or
before the Due Diligence Date shall be conclusively deemed the City's disapproval thereof. The
City's disapproval or deemed disapproval of said matters shall automatically terminate this
Agreement.
13. CONDITIONS PRECEDENT TO CONVEYANCE.
13.1 Conditions to the City's Obligations.
The obligations of the City under this Agreement shall be subject to the satisfaction or
written waiver, in whole or in part, by the City of each of the following conditions precedent:
(a) Execution and delivery by Seller of Deed and Declaration.
(b) The City has approved in writing the condition to title and Title Company
will issue the Title Policy as required by Section 7 of this Agreement insuring title to the
Parcel vested in the City.
IRV 418814 v9
(c) The City has approved in writing all Due Diligence matters on or before
the Due Diligence Date.
(d) The City has obtained financing.
(e) The City has approved a construction contract for the Parking Structure.
(f) The City has entered acquisition agreements for all Parcels of the Site.
(g) Delivery to the City of the instruments and funds, if any, accruing to the
City pursuant to this Agreement.
13.2 Conditions to Seller's Obligations.
The obligations of Seller under this Agreement shall be subject to the satisfaction or
-written waiver, in whole or in part, by Seller's delivery of the following pursuant to this
Agreement:
(a) Execution and delivery by City of Declaration.
(b) The City has approved in writing the condition to title and Title Company
will issue the Title Policy as required by Section 7 of this Agreement insuring title to the
Parcel vested in the City.
(c) City has approved in writing all Due Diligence matters on or before the
Due Diligence Date.
(d) Delivery to Seller of any temporary lease applicable until construction
commences.
(e) Delivery to the Seller of the instruments and funds, if any, accruing to the
Seller pursuant to this Agreement.
14. REPRESENTATIONS AND WARRANTIES.
14.1 Representations and Warranties.
Seller hereby makes the following representations and warranties to the City, each of
which, to the best of Seller's knowledge, is true as of the date hereof and shall be true on the date
of Closing on the Parcel:
(a) Seller has received no notice and/or has no knowledge that any
governmental authority or any employee or agent thereof considers any construction of
the proposed improvements on the Parcel or the present or proposed operation, use or
ownership of the Parcel to violate or have violated any ordinance, rule, law, regulation or
order of any government or agency, body or subdivision thereof, or that any investigation
has been commenced or is contemplated respecting such possible violations.
IRV 418814 v9 _12_ 6 'q 7
(b) There are no contracts, leases, claims or rights affecting the Parcel and no
agreements entered into by or under Seller shall survive the Closing that would adversely
affect the City's rights with respect to the Parcel except as heretofore disclosed in writing
by Seller to the City.
(c) Seller has received no written notice from any third parties, prior owners
of the Parcel, or any federal, state or local governmental agency, indicating that any
hazardous waste remedial or clean-up work will be required on the Parcel.
(d) Until the Closing, Seller shall not do anything which would impair or
encumber Sellers title to any of the Parcel.
(e) All utilities, including gas, electricity, water, sewage, and telephone, are
available at the property line of the Parcel, and all such items are in good working order.
(f) Until the Closing, if Seller learns of any fact or condition which would
cause any of the warranties and representations in this Section not to be true as of the
Closing, Seller shall immediately give written notice of such fact or condition to the City.
(g) Seller has the power and authority to execute, deliver and perform Seller's
obligations under this Agreement and the documents executed and delivered by Seller
pursuant hereto.
15. GENERAL PROVISIONS FOR CONVEYANCE.
15.1 General Provisions.
City Clerk shall deliver the Title Policy to the City and instruct the Riverside County
Recorder to mail the Grant Deed to the City at the address set forth in Section 18.5 after
recordation. All funds shall be administered by the City's Director of Finance and may be
deposited in the accounts of City with any bank doing business in Riverside County, California,
and shall be separately accounted from other City funds. All disbursements shall be made by
City check. This Agreement and any modifications, amendments, or supplements thereto may be
executed in counterparts and shall be valid and binding as if all of the parties' signatures were on
one document.
15.2 Proration of Real Property Taxes.
All nondelinquent general and special real property taxes shall be prorated to the Closing
on the basis of a thirty (30) day month and a three hundred sixty (360) day year. In the event that
property taxes are assessed on a parcel of real property which includes land other than the Parcel,
such proration shall include only taxes attributable to the Parcel, calculated in terms of total gross
square feet of land assessed pursuant to the tax statement versus total gross square footage of the
Parcel.
IRV 418814 v9 -13-
b � &
15.3 Payment of Costs.
The City shall pay documentary transfer taxes, the premium charges for the standard
CLTA Title Policy and any non-standard coverage requested by the City, the charges for
drawing and recording the Grant Deed and Declaration. Seller shall pay any fees and costs
charged by any lender or other entity to obtain reconveyances or otherwise put title in the
condition described in Section 7, and a]I costs necessary to satisfy any condition of due diligence
that Seller has agreed to satisfy. All other costs of Closing not otherwise specifically allocated
by this Agreement shall be paid by City.
15.4 Information Report.
The parties agree to cooperate with each other in completing any report ("Information
Report") and/or other information required to be delivered to the Internal Revenue Service
pursuant to Internal Revenue Code Section 6045(e) regarding the real estate sales transaction
contemplated by this Agreement, including without limitation, Internal Revenue Service Form
1099-B as such may be hereinafter modified or amended by the Internal Revenue Service, or as
may be required pursuant to any regulation now or hereinafter promulgated by the Treasury
Department with respect thereto. The City and Seller also agree that the City and Seller, their
respective employees and attorneys, and may disclose to the Internal Revenue Service, whether
pursuant to such Information Report or otherwise, any information regarding this Agreement or
the transactions contemplated herein as such party reasonably deems to be required to be
disclosed to the Internal Revenue Service by such party pursuant to Internal Revenue Code
Section 6045(e), and further agree that neither the City nor Seller shall seek to hold any such
party liable for the disclosure to the Internal Revenue Service of any such information.
16. BROKERAGE COMMISSIONS.
The City and Seller each represent and warrant to the other that no third party is entitled
to a broker's commission and/or finder's fee with respect to the transaction contemplated by this
Agreement. The City and Seller each agree to indemnify and hold the other parties harmless
from and against all liabilities, costs, damages and expenses, including, without limitation,
attorneys' fees, resulting from any claims or fees or commissions, based upon agreements by it, if
any, to pay a broker's commission and/or finder's fee.
17. RISK OF PHYSICAL LOSS.
Risk of physical loss to the Parcel shall be borne by Seller prior to the transfer of
possession or title and by the City thereafter. In the event that the Parcel shall be damaged by
fire, flood, earthquake or other casualty the City shall have the option to terminate this
Agreement, provided notice of such termination is delivered to Seller within twenty (20) days
following the date the City learns of the occurrence of such casualty. If the City fails to
terminate this Agreement pursuant to the foregoing sentence within said twenty (20) day period,
the City shall complete the acquisition of the Parcel, in which case Seller shall assign to the City
the interest of Seller in all insurance proceeds relating to such damage (subject to the rights of
tenants under leases of the Parcel). Seller shall consult with the City regarding any proposed
settlement with the insurer and the City shall have the reasonable right of approval thereof.
IRV HI88I4 v9 -14-
� -��
Seller shall hold such proceeds until the Closing. In the event this Agreement is terminated for
any reason, the City shall have no right to any insurance proceeds.
18. MISCELLANEOUS.
18.1 Possession.
Possession of the Parcel shall be delivered to the City at the close, provided that if for any
reason construction of the Parking Structure will not commence immediately after such closing,
Seller shall, through a lease with the City, retain possession with the right to use and maintain the
Parcel for parking after delivery of title and until commencement of construction, without
liability to City, until City gives written notice of the date of actual commencement of
construction, which date shall then be the date of transfer of possession.
18.2 No Conflict of Interest.
No officer or employee of the City shall have any financial interest, direct or indirect, in
this Agreement nor shall any such officer or employee participate in any decision relating to the
Agreement which effects his financial interest or the financial interest of any corporation,
partnership or association in which he is, directly or indirectly, interested, in violation of any
State statute or regulation. The Seller warrants that it has not paid or given and will not pay or
give any third party, other than Seller's real estate broker, any money or other consideration for
obtaining this Agreement.
18.3 Assigmnent.
Neither party shall have the right to assign this Agreement or any interest or right
hereunder without the prior written consent of the other party. Subject to the foregoing, this
Agreement shall be binding upon and shall inure to the benefit of the City and Seller and their
respective heirs, personal representatives, successors and assigns. The Seller shall have the right
to sell the Village Pub Property and assign the rights and obligations under the Agreement to its
purchaser.
18.4 Attorneys' Fees.
In any action between the parties hereto, seeking enforcement of any of the terms and
provisions of this Agreement, or in connection with the Parcel, the prevailing party in such
action shall be entitled, to have and to recover from the other party its reasonable attor ney's fees
and other reasonable expenses in connection with such action or proceeding, in addition to its
recoverable court costs.
18.5 Notices.
Any notice which either party may desire to give to the other panty must be in writing and
may be given by personal delivery or by mailing the same by registered or certified mail, return
receipt requested, to the party to whom 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:
iavniasiev9 -15- � +��
To Seller: Mr. Mathew Talala
To The City: Palm Springs Redevelopment Agency
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attention: Executive Director
Copy To: Burke, Williams & Sorensen, LLP
18301 Von Karman Avenue
Suite 1050
Irvine, CA 92612
Attn: David J. Aleshire, Esq.
18.6 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 neutral gender and the singular or plural number shall each
be deemed to include the others wherever and whenever the context so dictates.
18.7 No Waiver.
No delay or omission by either party hereto in exercising any right or power accruing
upon the compliance or failure of performance by the other party hereto under the provisions 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.
18.8 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.
18.9 Severability.
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, provisions, condition or covenant
to persons or circumstances other than those as to whom or which it is held invalid or
IRV 919814 v9 -16- kv-101
unenforceable, shall not be affected thereby, and each tern and provision of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
18.10 Merger of Prior Agreements and Understandings.
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 to
contemporaneous agreements, understandings, representations and statements, oral or written,
are merged herein and shall be of no fiu-ther force or effect.
18.11 No Withholding Because Non-Foreign Seller.
Seller represents and warrants to the City that Seller is not, and as of the Closing will not
be, a foreign person within the meaning of Internal Revenue Code Section 1445 or an out-of-
state seller under California Revenue and Tax Code Section 18662 and that it will deliver to the
City on or before the Closing a non-foreign affidavit on standard form pursuant to Internal
Revenue Code Section 1445(b)(2) and the Regulations promulgated thereunder and a California
Form 590-RE.
18.12 Execution in Counterparts.
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.
[SIGNATURE PAGE TO FOLLOW]
IRV 918814 v9 -17-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement for Purchase and
Sale of Real Property and Instructions as of the date set forth above.
"SELLER" Mr. MATHEW TALALA for C.H.I.C., LLC
By:
Its:
"CITY"
ATTEST: CITY OF PALM SPRINGS, a municipal
corporation
City Clerk
By:
Its: [Mayor] [City Manager]
APPROVED ASIO FORM:
BURKE, WILLIAMS & SORENSEN, LLP
David J. Aleshire
City Attorney
IRV 418814 v9
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PARCEL "B"
LEGAL DESCRIPTION OF RESTRICTED PARCEL:
APN: 513-154-034
ALL THAT PORTION OF PARCEL 1 OF PARCEL MAP NO. 13574 AS RECORDED IN PARCEL
MAP BOOK 73 AT PAGE 52,RECORDS OF RIVERSIDE COUNTY, CALIFORNIA,DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID PARCEL 1,THENCE SOUTH 890-52'-48"
WEST ALONG THE NORTHERLY LINE OF SAID PARCEL 1 A DISTANCE OF 145.34 FEET TO AN
ANGLE POINT ON THE NORTHERLY LINE OF SAID PARCEL 1;
THENCE SOUTH 000-05'-27"EAST ALONG THE WESTERLY LINE OF SAID PARCEL 1 A
DISTANCE OF 50.01 FEET TO AN ANGLE POINT IN SAID LINE OF SAID PARCEL 1;
THENCE NORTH 890-52"-48"EAST A DISTANCE OF 145.34 FEET TO THE EAST LINE OF SAID
PARCEL 1;
THENCE NORTH 000-05'-38"EAST ALONG SAID EAST LINE A DISTANCE OF 50.01 FEET TO
THE POINT OF BEGINNING;
SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF RECORD IF ANY.
LEGAL DESCRIPTION OF BENEFIT PARCEL:
APN: 513-154-016
LOT 9 OF BLOCK 28 OF PALM SPRINGS TOWNSITE AS RECORDED IN MAP BOOK 9 AT PAGE
423,RECORDS OF SAN DIEGO COUNTY, CALIFORNIA.
SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF RECORD IF ANY.
PREPARE BY
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LAtVD
SANg� hL
JO L. SANBORN PLS. 4146 aF )v'
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PARKING STRUCTURE
LEGAL DESCRIPTION:
ALL THAT PORTION OF PARCEL 1 OF PARCEL MAP NO.13574 AS RECORDED IN PARCEL
MAP BOOK 73 AT PAGE 52,RECORDS OF RIVERSIDE COUNTY, CALIFORNIA AND ALL OF
LOTS 17 AND 18 AND A PORTION OF LOT 19 OF BLOCK 28 OF PALM SPRINGS TOWNSITE AS
RECORDED IN MAP BOOK 9 AT PAGE 423,RECORDS OF SAN DIEGO COUNTY, CALIFORNIA,
DESCRIBED AS FOLLOWS;
COMMENCING AT THE SOUTHEAST CORNER OF SAID PARCEL 1,THENCE NORTH 000-05'-
38" WEST ALONG THE EAST LINE OF SAID PARCEL 1 AND THE EAST LINE OF SAID LOTS 17,
18 AND 19 A DISTANCE OF 325,06 FLET;TTIENCE SOUTH 890-52'-48"WEST A DISTANCE OF
82.71 FEET;
THENCE NORTH 000-05'-27"WEST A DISTANCE OF 25.01 FEET TO THE NORTH LINE OF SAID
LOT 19;
THENCE SOUTH 890-52'-48"WEST ALONG SAID NORTH LINE A DISTANCE OF 62.62 FEET TO
THE NORTHWEST CORNER OF SAID LOT 19;
THENCE SOUTH 000-05'-27"EAST ALONG THE WEST LINE OF SAID LOTS 19, 18 17 AND
PORTION OF THE WESTERLY LINE OF SAID PARCEL 1 A DISTANCE OF 350.06 FEET TO THE
SOUTH LINE OF SAID PARCEL 1;
THENCE NORTH 890-53'-07"EAST ALONG SAID SOUTH LINE A DISTANCE OF 145.35 FEET TO
THE POINT OF BEGINNING.
SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OP RECORD IF ANY.
PREPARED BY
7SANB A/Ef.
ANBORN PLS. 4146 Fw' ,SANeU 02/27/02 C� 9y L2
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Exhibit "B": Site Plan, ® I ITT
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Level 2 Plan Level 3 Plan Level 4 Plan
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Family dl°81 51 bl 8 -
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Property N° -a _- C7�C e C LEVEL 3 121 - 121 37,658 S.F.
9 LEVEL 2 120 - 120 37,656 S.F.
GROUND LEVEL 92 11 103 37.658 S.F.
Chop House/ Deck
TOTAL 368 /1 379 123,994 S.F.
as -- ll. Parking Data
Village b PARKING STRUCTURE CAPACITY 379 STALLS
W STALL WIDTH -STANDARD 9'-0.
e � PARKING ANGLE 90'
j r EFFICIENCY 327 S.F./STALL
296 South f -
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Baristo Road Exhibit ltAll.
Level 7 Plan plan of Improvement
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EXHIBIT "E"
SCHEDULE OF PERFORMANCE
Items of Performance Time for Performance
1. Start Site Topographic Base Map and As Soon As Possible
Geotechnical Report After Approval
2. Complete Topographic Base Map & Within Thirty (30)
Geotechnical Report Days of Approval
3. Start Design-Build Scope Documents by As Soon As Possible
A/E Team After Approval
4. Complete Design-Build Scope Document Within Sixty (60)
Bid Package Days of Approval
5. Begin Bid Phase for Design Build Contractors As Soon As Possible
After Execution
6. Complete Bid Phase and Award Design-Build Contract Within Sixty (60)
Days of Execution
7. City obtains a Preliminary Title Report describing As Soon As Possible
the state of title of the Parcel. After Execution
8. City provides the Title Notice to Seller Within Fifteen(15)
Days of Receiving the
Preliminary Title
Report
9. Seller notifies the City that it accepts or declines Within Five (5) Days
to remove Disapproved Exceptions, if any. of Receiving the
City's Title Notice
10. Scheduled Date for Due Diligence Forty-Five (45) Days
After Execution
11. Scheduled Date for Closing Sixty (60)Days
After Execution
12. Begin Site Demolition and Construction Phase June 2002 or June
June 2003
13. Complete Site and Building Construction Phase November 14, 2002
or November 14,
2003
It is understood that the foregoing Schedule of Performance is subject to all of the
terms and conditions set forth in the text of the Agreement. The summary of the items of
performance in this Schedule of Performance is not intended to supersede or modify the
more complete description in the text; in the event of any conflict or inconsistency
between this Schedule of Performance and the text of the Agreement, the text shall
govern. Items marked for "Approval" are for illustrative and convenience purposes only
and are not intended to supersede or modify the Agreement.
Notwithstanding the foregoing, the City Manager shall have reasonable discretion
to extend the terms provided within the Schedule of Performance to conform with the
scheduling of the commencement of construction in either June 2002 or June 2003, as
provided in the Agreement.
' N
IRV H17577 vl _2_
EXHIBIT"E" TO PURCHASE AND SALE AGREEMENT
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
THE CITY OF PALM SPRINGS
3200 East Tahquitz Canyon Way
Palm Springs, California 92262
Attn: City Clerk
(Space Above For Recorder's Use)
AGREEMENT CONTAINING COVENANTS, CONDITIONS AND RESTRICTIONS
THIS AGREEMENT CONTAINING COVENANTS, CONDITIONS AND
RESTRICTIONS ("Agreement") is entered into this day of 2002, by
and between C.H.I.C., LLC ("Owner") and the CITY OF PALM SPRINGS, a municipal
corporation("City").
RECITALS
A. Owner is the owner of certain real property located in the City of Palm Springs,
County of Riverside, State of California, commonly known as "The Village Pub," bearing APN
Number 513-154-034 (the "Benefited Property"). The legal description of the Benefited
Property is set forth in the "Legal Description" attached hereto as Exhibit "A" and is shown in
the "Site Map" attached hereto as Exhibit `B", both of which exhibits are incorporated herein by
this reference.
B. The City is acquiring certain parcels of property to construct various parking
improvements adjacent to the Benefited Property, including surface parking to provide
approximately thirty-two (32) spaces and a three (3) level parking structure with approximately
three hundred eighty (380) spaces (the "Parking Structure").
C. The Parking Structure is located on certain property described herein as the
"Parking Structure Property." The legal description of the Parking Structure Property is set forth
in Exhibit "A". The Parking Structure Property includes various parcels including a parcel
conveyed by Owner (the "Restricted Parcel"), which is legally described in Exhibit "A".
D. In exchange for the conveyance by Owner to City of the Restricted Parcel, the
City has agreed, among other things, to record this Agreement reserving certain parking rights in
the Parking Structure for the benefit of the Benefited Property, subject to certain obligations.
NOW, THEREFORE, the parties declare, covenant and agree, by and for themselves,
their heirs, executors and assigns, and all persons claiming under or through them that the
Restricted Parcel shall be held, transferred, encumbered, used, sold, conveyed, leased_ and
occupied subject to the covenants, restrictions and obligations hereinafter set forth, subject to the
obligations of the Owner of the Benefited Property to meet certain conditions as described
herein.
IRV N18816 v11 -I-
J9 I//2W
1.0 Allocation of Reserved Parking Spaces.
In consideration for conveyance of the Restricted Parcel to City to develop the
Parking Structure, and for the term designated in Section 9.1 below, the City agrees to allocate
reserved parking within the Parking Structure to the Benefited Property as provided herein. The
Benefited Property shall be provided with twenty-one (21) reserved parking spaces (the
"Reserved Spaces"), located as shown in the "Parking Restriction Plan" attached hereto as
Exhibit C and incorporated herein by this reference. The parking spaces provided herein are
"reserved" in the sense that a sign will be located on a particular space as to indicate that the
space is provided solely for the Benefited Property and for the Owner, tenants, business
occupants and invitees to the Benefited Property. No gates or other access mechanisms will be
provided to further restrict parking access to reserved spaces other than the signs described
above. Additionally, Owner or Owner's tenants or business occupants shall be permitted to
employ parking attendants and valets in the Parking Structure at their own expense to control
access to or use of the Reserved Spaces for restricted or valet parking purposes.
2.0 No Severance or Assignment of Reserved Parking Spaces.
The Reserved Spaces shall inure to the benefit of the Benefited Property only and
for the owners, tenants business occupants and invitees thereto; provided, however, that Owner
shall not sever or assign, the rights to the Reserved Spaces, which shall be deemed to run with
and benefit the Benefited Property and run with and burden the Parking Structure Property
pursuant to Section 9.
3.0 Restricted Parking and Zoning.
It is agreed between the parties that the Reserved Spaces shall be considered
towards meeting Owner's obligation to provide on-site parking spaces under the Palm Springs
Zoning Ordinance. In determining future uses of the Benefited Property, the Reserved Spaces
shall be counted as if they were still on-site spaces of the Benefited Property. Nothing herein
shall prevent the City from amending :its zoning ordinance in the future concerning downtown
parking or the manner in which parking requirements are established or counted for future
tenants, or to deny uses with insufficient parking, but Owner shall be entitled to count the
Reserved Spaces provided in this Agreement as if they were on-site spaces.
4.0 Obligations of City.
4.1 Condition of the Parking Structure. City shall maintain the Parking
Structure in good working order, reasonable wear and tear excepted. The City, as owner of the
Parking Structure, shall have the frill and complete right to reconstruct, modify, rehabilitate,
improve, change or alter the Parking Structure, even if such work should temporarily restrict
access to parking spaces, provided that (i) City will give Owner reasonable prior notice of any
such work, (ii) City will make all reasonable efforts to minimize the disruption to parking within
the Parking Structure and adjoining businesses caused by such work during normal business
hours, and (iii) City will not reduce the number of Reserved Spaces.
IRV 418816 v11 2 b e113
4.2 Sign Program. Owner will have the right to participate in the City's sign
program to provide signage on the Parking Structure, which compensates Owner for loss of
visibility on Baristo Road and Indian Canyon Drive. The sign program will be subject to
Owner's approval and be approved by the Planning Commission; shall be in accordance with all
applicable laws, including, but not limited to, the Palm Springs Municipal Code and the Palm
Springs Zoning Code; and shall be compatible with the final design of the Parking Structure.
Signage will be provided on a rent free basis. City shall provide the space for said signage, but
shall not be obligated to compensate Owner for installation and maintenance costs for such
signage.
4.3 Trash. The City shall provide Owner with a reasonable site for trash
disposal, as specifically set forth in the Site Map, attached hereto as Exhibit `B." The trash
disposal area shall be accessible during normal business hours and Owner shall be responsible
for all disposal fees and for the proper disposal of trash to keep the trash area clean and sanitary.
The parties may enter a separate agreement concerning the trash storage area.
5.0 Obligations of Owner.
5.1 Compliance with Applicable Laws. Owner shall comply with all
ordinances, regulations and standards of the City applicable to the Benefited Property.
5.2 Notice to Tenants. Owner shall provide any proposed tenants of any
portion of the Benefited Property with a copy of this Agreement and shall include in any lease
agreement, a provision requiring tenant's compliance with the terms of this Agreement.
5.3 Insurance. The Owner shall procure and maintain, at its sole cost and
expense, in a form and content reasonably satisfactory to City, during the entire term of this
Agreement including any extension thereof, a policy of commercial general liability insurance
written on a per occurrence basis for bodily injury and property damage including coverage for
contractual liability, personal injury, broad form property damage, products and completed
operations, providing coverage for Owner's employees, agents, and invitees use of the Reserved
Spaces in the Parking Structure. The policies shall be considered primary and shall name the
City of Palm Springs as additional insured in accordance with standard ISO additional insured
endorsement form CG2010(1185) or equivalent language. Upon request by City's Risk
Manager, Owner shall provide Risk Manager, with copies of such insurance coverage and shall
make adjustments necessary to maintain appropriate coverage.
6.0 Nondiscrimination.
There shall be no discrimination against or segregation of any person, or group of
persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Benefited
Property, or any part thereof, nor shall Owner, or any person claiming under or through it,
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees of the Benefited Property, or any part thereof.
IRV#18816 v11 //Y
7.0 Indemnification.
Each party agrees to indemnify the other, its officers, and employees against, and
will hold and save them and each of them harmless from, any and all actions, suits, claims,
damages to persons or property, losses, costs, penalties, obligations, errors, omissions or
liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person, firm or
entity arising out of or in connection with the acts or omissions of said party, its agents,
employees, subcontractors, or invitees hereunder, excluding such claims or liabilities arising
from the sole negligence or willful misconduct of the other party.
8.0 Enforcement.
8.1 Default and Opportunity to Cure. Failure or delay by either party to timely
perform any covenant of this Agreement constitutes a default under this Agreement, but only if
the party who so fails or delays does not commence to cure, correct or remedy such failure or
delay within thirty (30) days after receipt of a notice specifying such failure or delay, and that
party does not thereafter prosecute such cure, correction or remedy with diligence to completion.
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, or
imminent threat of personal injury, the injured party may not institute proceedings against the
party in default until thirty (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.
8.2 Remedies.
A. General. Either party having complied with the provisions of Section 8.1 may
institute action to cure, correct or remedy any default consistent with the purposes of this
Agreement. The parties acknowledge and agree that any material violation of this Agreement is
likely to result in immediate and irreparable harm for which monetary damages are likely to be
inadequate. The parties further agree not to pursue legal damages one against the other, except
as provided herein.
B. Equitable Remedies. If either party defaults hereunder by failing to perform
any of its obligations herein, each parry agrees that the other shall be entitled to equitable
remedies including the judicial remedy of specific performance and injunctive relief and each
party agrees (subject to its reserved right to contest whether in fact a default does exist) not to
challenge or contest the appropriateness of such remedy. The parties further agree to take every
action possible expedite legal review of such issues.
C. No Termination. City expressly agrees that although this Agreement may
terminate pursuant to Section 9.0, City may not terminate due to default by Owner, but in
addition to all other remedies, shall have the remedies provided in subsection D of this Section.
D. City Right to Perform Work. After giving notice and opportunity to cure
pursuant to Section 8.1, and in lieu of judicial action pursuant to 8.2, City may correct any
default through its employees, agents or contractors by performing any action required of Owner
and may then charge Owner for its actual expenses for performing such work. Owner shall pay
ravxrsaievn 4 ko
I
any such charges within thirty (30) days after receiving written notice thereof, and shall pay
interest for late payment thereafter at the legal rate, provided that Owner may appeal the
reasonableness or need for such charges to the City Council at a public meeting, and in the event
such appeal is rejected, may contest charges judicially.
8.3 Law and Forum. The Laws of the State of California shall govern the
interpretation and enforcement of this Agreement. Actions must be instituted and maintained in
the Indio branch of the Superior Court of the County of Riverside, State of California, in any
other appropriate court in that county, or in the Federal District Court in the Central District of
California.
8.4 No Waiver. No delay or omission in the exercise of any right or remedy
by a non-defaulting party on any default shall impair such right or remedy or be construed as a
wavier. A party's consent to or approval of any act by the other party requiring the party's
consent or approval shall not be deemed to waive or render unnecessary the other patty's consent
to or approval of any subsequent act. Any waiver by either party of any default must be in
writing and shall not be a waiver of any other default concerning the same or any other
provisions of this Agreement.
8.5 Prevailing Party Attorneys' Fees. In any action between the parties
seeking enforcement of any of the terms and provisions of this Agreement, the prevailing party
in such action shall be awarded, in addition to specific performance, injunctive or other relief, its
reasonable costs and expenses, including attorneys' fees.
9.0 Term and Reversion.
9.1 Term. The covenants, conditions and restrictions contained in this
Agreement shall remain in effect for a period of thirty (30)years from the date of this Agreement
and shall thereafter automatically be extended for additional periods of five (5) years, unless
prior to any such extension the City elects to terminate this Agreement by providing written
notice to Owner. In addition, this Agreement shall terminate if the Parking Structure is
destroyed, except as otherwise provided in Section 9.0. The covenants contained in Section 6.0
shall remain in effect for perpetuity.
9.2 Destruction, Closure and Replacement of Parking Structure on the
Restricted Parcel. Should the Parking Structure be totally or substairtially destroyed or
permanently closed, either through peril or due to economic or functional obsolescence or other
cause, City shall have no obligation to Owner to replace such Parking Structure. City shall
determine within 180 days of such event, whether City intends to replace, restore, or repair the
Parking Structure or to permit reversion pursuant to Section 9.4, and shall promptly give Owner
written notice of such determination. In the event the City decides to replace such Parking
Structure, City shall do so with a substautially equivalent Parking Structure within one year of
the destruction or closure of the Parking Structure, and shall provide an equivalent number of
restricted parking spaces in the new structure to Owner as provided hereunder, and this
Agreement shall continue in full force and effect. If City determines not to replace, restore or
repair the Parking Structure, then this Agreement shall terminate immediately and the Restricted
Parcel shall be restored to Owner pursuant to Section 9.4. In the event of destruction or closure
IRV N 18816 v I 1
as provided herein, until the Parking Structure is restored or replaced or reversion occurs under
Section 9.4, City shall endeavor to provide restricted parking spaces to Owner on a pro rata basis
with other owners, until the Parking Structure is replaced or restored to frill operation.
93 Proceeds of Insurance or Condemnation. If during the term of this
Agreement the Parking Structure is destroyed by insured peril or taken by the exercise of the
power of eminent domain, Owner shall have no right to the receipt of the proceeds thereof, but
shall be entitled to exercise its power of reverter as described in Section 9.4. It is expressly
understood that this Agreement shall not be deemed an interest in real property.
9.4 Owner's Remedy of Reversion. In the event that the Parking Structure is
demolished and not replaced pursuant to Section 9.2 and this Agreement is terminated, then the
Restricted Parcel shall revert to the Owner of the Benefited Property, their heirs, successors and
assigns. The parties shall cooperate in recording quitclaim deeds or other necessary documents
for the City to promptly convey the Restricted Parcel to Owner and to eliminate either party's
interest in this Agreement. The Restricted Parcel shall be returned to Owner in the same title and
in the same physical condition as conveyed, and free of all structures, improvements or
conditions.
10.0 Covenants to Run With the Land.
10.1 Covenants Ruining With the Land. This Agreement is designed to create
equitable servitudes and covenants appurtenant to the Restricted Parcel and running with the
Benefited Property. The parties declare that the Restricted Parcel shall be held, sold, conveyed,
encumbered, hypothecated, leased, used, occupied and improved subject to the covenants,
conditions, restrictions and equitable servitudes, all of which are for the purposes of uniformly
enhancing or protecting the value, attractiveness and desirability of the Benefited Property and
the Restricted Parcel. The covenants, conditions, restrictions, reservations, equitable servitudes,
liens and charges set forth herein shall run with the Restricted Parcel and shall be binding upon
all persons having any right, title or interest in the Restricted Parcel, or any part thereof, their
heirs, successive owners and assigns; shall inure to the benefit of every portion of the Benefited
Property and any interest therein; shall be binding upon City, its successors and assigns and
successors in interest; City and Owner hereby declare their understanding and intent that the
burden of the covenants set forth herein touch and concern the land. City and Owner hereby
further declare their understanding and intent that the benefit of such covenants touch and
concern the land by enhancing and increasing the enjoyment and use of the Restricted Parcel by
the citizens of the City and by furthering the health, safety, welfare and convenience of the
residents of the City and the owners or tenants of the Benefited Property.
10.2 Agreement Between Owner and City. The parties hereby agree to hold,
sell, and convey their respective parcels subject to the covenants, conditions, restrictions and
reservations of this Agreement. The parties also grant each to the other the right and power to
enforce the covenants, conditions, restrictions and reservations contained in this Agreement
against the other party and all persons having any right, title or interest to their respective parcel,
or any part thereof, their heirs, successive owners and assigns.
Iavnissievn
6-
10.3 No Mortgages. Owner may not pledge, encumber, secure or otherwise
hypothecate any interest created by this Agreement, or any interest in the Restricted Parcel, for
purposes of obtaining financing or for any other purpose.
11.0 Miscellaneous.
11.1 Modification. This Agreement may not be modified, terminated or
rescinded, in whole or in part, except by a written instrument duly executed and acknowledged
by the parties hereto, their successors or assigns and duly recorded in the Office of the County
Recorder, County of Riverside.
11.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State o:f California.
11.3 Severability. The invalidity of or inability to enforce any provision of this
Agreement with respect to a particular party or set of circumstances shall not in any way affect
the validity and enforceability of any other provision hereof, or the same provision when implied
to another party or to a different set of circumstances.
11.4 Notices. Any notice to be given under this Agreement shall be given by
personal delivery or by depositing the same in the United States Mail, certified or registered,
postage prepaid, at the following address:
City: City of Palm Springs
P.O. Box 2743
Palm Springs, CA 92263
Attn: City Clerk
With Copy to: Burke, Williams & Sorensen, LLP
18301 Von Karman Ave, Suite 1050
Irvine, CA 92612
Attn: David J. Aleshire, Esq.
Owner:
With Copy to:
Any notice delivered personally shall be effective upon delivery. Any notice given by
mail as above provided shall be effective forty-eight (48) hours after deposit in the mails. Any
party may change address for notice by giving written notice of such change to the other party.
11.5 Counterparts. This Agreement may be executed in any number of
counterparts each of which shall be an original but all of which shall constitute one and the same
document.
IRV i118816 v11
118
11.6 Authority to Sign. The persons executing this Agreement on behalf of
the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly
authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing
this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the
entering into this Agreement does not violate any provision of any other Agreement to which
said party is bound.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
Mr. MATHEW TALALA for C.H.I.C., LLC
.� BY• � E,�� �
Its:
By:
Its:
"Owner"
[OWNER'S SIGNATURE MUST BE NOTARIZED]
IRV 918816 v 1 I
_g_
ATTEST: CITY OF PALM SPRINGS,
a municipal corporation
By: By:
City Cleric City Manager
APPROVED AS TO FORM: RECOMMENDED:
BURKE, WILLIAMS & SORENSEN, LLP
By:
David J. Aleshire, Director of Public Works
City Attorney
APPROVED AS TO OWNERSHIP AND
LEGAL DESCRIPTION
IRV N 18816 v l 1 -9-
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Exhibit: W% Parcel Map
PARCEL `B"
LEGAL DESCRIPTION OF RESTRICTED PARCEL:
APN: 513-154-034
ALL THAT PORTION OF PARCEL I OF PARCEL MAP NO. 13574 AS RECORDED IN PARCEL
MAP BOOK 73 AT PAGE 52,RECORDS OF RIVERSIDE COUNTY, CALIFORNIA,DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID PARCEL 1,THENCE SOUTH 890-52'-48"
WEST ALONG THE NORTHERLY LINE OF SAID PARCEL 1 A DISTANCE OF 145.34 FEET TO AN
ANGLE POINT ON THE NORTHERLY LINE OF SAID PARCEL 1;
THENCE SOUTH 000-05'-27"EAST ALONG THE WESTERLY LINE OF SAID PARCEL 1 A
DISTANCE OF 50.01 FEET TO AN ANGLE POINT IN SAID LINE OF SAID PARCEL 1;
THENCE NORTH 890-52"-48"EAST A.DISTANCE OF 145.34 FEET TO THE EAST LINE OF SAID
PARCEL 1;
THENCE NORTH 000-05'-38"EAST ALONG SAID EAST LINE A DISTANCE OF 50.01 FEET TO
THE POINT OF BEGINNING;
SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF RECORD IF ANY.
LEGAL DESCRIPTION OF BENEFIT PARCEL:
APN: 513-154-016
LOT 9 OF BLOCK 28 OF PALM SPRINGS TOWNSITE AS RECORDED IN MAP BOOK 9 AT PAGE
423,RECORDS OF SAN DIEGO COUNTY, CALIFORNIA.
SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF RECORD IF ANY.
PREP BY
SANS INC.
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JO L. SANBORN PLS. 4146 0����'SANB o9y
01 28BENPCLB 02/26/02 +L O
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Exp.6-30-04
PARKING STRUCTURE
LEGAL DESCRIPTION:
ALL THAT PORTION OF PARCEL 1 OF PARCEL MAP NO.13574 AS RECORDED IN PARCEL
MAP BOOK 73 AT PAGE 52,RECORDS OF RIVERSIDE COUNTY, CALIFORNIA AND ALL OF
LOTS 17 AND 18 AND A PORTION OF LOT 19 OF BLOCK 28 OF PALM SPRINGS TOWNSITE AS
RECORDED IN MAP BOOK 9 AT PAGE 423,RECORDS OF SAN DIEGO COUNTY, CALIFORNIA,
DESCRIBED AS FOLLOWS;
COMMENCING AT THE SOUTHEAST CORNER OF SAID PARCEL 1,THENCE NORTH 000-05'-
38"WEST ALONG THE EAST LINE OF SAID PARCEL 1 AND THE EAST LINE OF SAID LOTS 17,
18 AND 19 A DISTANCE OF 325.06 FEET;THENCE SOUTH 89°-52'-48" WEST A DISTANCE OF
82.71 FEET;
THENCE NORTH 000-05'-27" WEST A DISTANCE OF 25.01 FEET TO THE NORTH LINE OF SAID
LOT 19;
THENCE SOUTH 890-52'48"WEST ALONG SAID NORTH LINE A DISTANCE OF 62.62 FEET TO
THE NORTHWEST CORNER OF SAIL)LOT 19;
THENCE SOUTH 000-05'-27"EAST ALONG THE WEST LINE OF SAID LOTS 19, 18 17 AND
PORTION OF THE WESTERLY LINE OF SAID PARCEL 1 A DISTANCE OF 350.06 FEET TO THE
SOUTH LINE OF SAID PARCEL 1;
THENCE NORTH 890-53'-07"EAST ALONG SAID SOUTH LINE A DISTANCE OF 145.35 FEET TO
THE POINT OF BEGINNING.
SUBJECT TO ALL EASEMENTS AND RIGHTS OF WAY OF RECORD IF ANY.
PREPARED BY
SANJ3 A/E
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16 Parking Lot Spaces
ad Reserved for 7 O O
ME a o �. I Frank Family Trust Parcel
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25 Spaces Reserved
P fiCPARWNC A= 9 for Zachary Franks Parcel I 9
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Spaces Reserved
37 Spaces Reserved for 21 S Pa
296 South Palm Canyon Drive Property for Mathew Talala Parcel
m� d (Village Pub)
V
Indian Canyon Drive
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On f lf2 -�.� S, 2�d. before me, ��G�/z�s' �l �� ilm Notary Public,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/sheAhey executed the same in his/her/-their authorized capacity(4es), and that by his/her/their
signature(s) on the instrument the person(s� or the entity upon behalf of which the person(g)
acted, executed the instrument.
Witness my hand and official seal. Y q p
' /'✓k�lA A Aim d��/� (F/f//]C`�?2r���
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RESOLUTION NO.
OF THE CITY OF PALM SPRINGS, CALIFORNIA,
APPROVING AN ACQUISITION AGREEMENT WITH
THOMASA.ADAMO&EILEEN C.ADAMO OF CATHEDRAL
CITY, CALIFORNIA, HUSBAND AND WIFE, FOR THE
ACQUISITION OF A PROPERTY KNOWN AS 249 SOUTH
INDIAN CANYON DRIVE (APN 513 154 026) FOR THE
PURPOSE OF CONSTRUCTING A DOWNTOWN PARKING
STRUCTURE
WHEREAS the City of Palm Springs has endeavored for the past thirty years to increase
the supply of public parking in the downtown area; and
WHEREAS the City is proceeding with the construction of a downtown parking structure
at the northwest corner of Baristo Road and Indian Canyon Drive; and
WHEREAS the City has negotiated an Acquisition Agreement with Thomas A. Adamo &
Eileen C.Adamo that trades the value of the property, plus in-lieu parking fees paid by the
property owner, for reserved spaces in the structure at a rate of $12,000 per space.
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Palm Springs,
that the Acquisition Agreement and Agreement Containing Covenants, Codes and
Restrictions, in a form approved by the City Attorney, is hereby approved.
ADOPTED this day of_ 2002.
AYES:
NOES:
ABSENT:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By _
City Clerk City Manager
REVIEWED & APPROVED AS TO FORM
e
RESOLUTION NO.
OF THE CITY OF PALM SPRINGS, CALIFORNIA,
APPROVING AN ACQUISITION AGREEMENT WITH
ZACHARY FRANKS & MARLY STONE OF KIHEI, HAWAII,
HUSBAND AND WIFE, AND THE JEFF S. WHITE LIVING
TRUST, FOR THE ACQUISITION OF A PROPERTY ON
SOUTH INDIAN CANYON DRIVE (APN 513 154 008) FOR
THE PURPOSE OF CONSTRUCTING A DOWNTOWN
PARKING STRUCTURE
WHEREAS the City of Palm Springs has endeavored for the past thirty years to increase
the supply of public parking in the downtown area; and
WHEREAS the City is proceeding with the construction of a downtown parking structure
at the northwest corner of Baristo Road and Indian Canyon Drive; and
WHEREAS the City has negotiated an Acquisition Agreement with Zachary Franks&Marly
Stone and the Jeff S. White Living Trust, that trades the value of the property, plus in-lieu
parking fees paid by the property owner, for reserved spaces in the structure at a rate of
$12,000 per space.
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Palm Springs,
that the Acquisition Agreement and Agreement Containing Covenants, Codes and
Restrictions, in a form approved by the City Attorney, is hereby approved.
ADOPTED this day of_ 2002.
AYES:
NOES:
ABSENT:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By _
City Clerk City Manager
REVIEWED & APPROVED AS TO FORM
cra - h - d
RESOLUTION NO.
OF THE CITY OF PALM SPRINGS, CALIFORNIA,
APPROVING AN ACQUISITION AGREEMENT WITH
C.H.I.C., L.L.C.AND MATHEW TALALA OF PALM SPRINGS,
CALIFORNIA FOR THE ACQUISITION OFA PROPERTYON
SOUTH INDIAN CANYON DRIVE (APN 513 154 034) FOR
THE PURPOSE OF: CONSTRUCTING A DOWNTOWN
PARKING STRUCTURE
WHEREAS the City of Palm Springs has endeavored for the past thirty years to increase
the supply of public parking in the downtown area; and
WHEREAS the City is proceeding with the construction of a downtown parking structure
at the northwest corner of Baristo Road and Indian Canyon Drive; and
WHEREAS the City has negotiated an Acquisition Agreement with Mathew Talala and
C.H.I.C., L.L.C. that trades the value of the property, plus in-lieu parking fees paid by the
property owner, for reserved spaces in the structure at a rate of $12,000 per space.
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Palm Springs,
that the Acquisition Agreement and Agreement Containing Covenants, Codes and
Restrictions, in a form approved by the City Attorney, is hereby approved.
ADOPTED this day of_ 2002.
AYES:
NOES:
ABSENT:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By —
City Clerk City Manager
REVIEWED &APPROVED AS TO FORM
c ra