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HomeMy WebLinkAboutOB-139RESOLUTION NO. OB - 139 A RESOLUTION OF THE OVERSIGHT BOARD OF THE SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY AUTHORIZING THE EXECUTION OF A FIRST AMENDMENT TO THE DISPOSITION AGREEMENT FOR PROPERTY LOCATED ON THE NORTH SIDE OF COUNTRY CLUB DRIVE, EAST OF PORTOLA AVENUE, PALM DESERT, CA (APN 620-430-024 AND 620-430-025, PROPERTY 12g OF THE LONG RANGE PROPERTY MANAGEMENT PLAN) WITH DESERT EQUITY GROUP, LLC RECITALS: A. Pursuant to AB X1 26 (enacted in June 2011), as modified by the California Supreme Court's decision in California Redevelopment Association, et al. v. Ana Matosantos, et al., 53 Cal. 4th 231 (2011), the Palm Desert Redevelopment Agency (the "Former Agency") was dissolved as of February 1, 2012 and the Successor Agency was established, and the Oversight Board to the Successor Agency (the "Oversight Board") was constituted. B. AB 1484 (enacted June 2012) amended and supplemented AB X1 26 (AB X1 26 and AB 1484, together, being referred to below as the "Dissolution Act"). C. Pursuant to the Dissolution Act, the Successor Agency is tasked with winding down the affairs of the Former Agency. D. Pursuant to Section 34175(b) of the California Health and Safety Code ("HSC"), all real properties of the Former Agency transferred to the control of the Successor Agency by operation of law. E. On May 5, 2014, the Oversight Board adopted Resolution No. OB-073, approving a Tong -range property management plan (the "LRPMP") which addresses the disposition of the real properties owned by the Successor Agency. F. As indicated in the DOF's letter dated June 2, 2014, the DOF has approved the LRPMP. G. Pursuant to HSC Section 34191.3, the DOF-approved LRPMP shall govern, and supersede all other provisions of the Dissolution Act relating to, the disposition and use of the real property assets of the Former Agency. H. Pursuant to the approved LRPMP, the Oversight Board authorizes the execution of a First Amendment to the Disposition Agreement with Desert Equity Group, Inc. for Property 12g of the LRPMP (APN 620-430-024 and 620-430-025) extending the Outside Date to Close Escrow from January 1, 2016 to October 15, 2016. -1- RESOLUTION NO. OB - 139 I. In accordance with the terms of California Health and Safety Code Section 34191.5(c)(2)(B), the proceeds of this property sale will distributed as property taxes to the affected taxing entities. J. The Oversight Board is adopting this Resolution to direct the execution of a First Amendment to the Disposition Agreement with Desert Equity Group, LLC as directed by the approved LRPMP. K. Notice of the proposed action presented in this Resolution was posted on the Successor Agency's website (being a page on the City's website) and at three public places: beginning on January 13 , 2016. NOW, THEREFORE, THE OVERSIGHT BOARD OF THE SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS: Section 1. The above recitals, and each of them, are true and correct. Section 2. The Oversight Board hereby authorizes and directs the Successor Agency to complete the execution of the First Amendment to the Disposition Agreement with Desert Equity Group. The Chair (or in the Chair's absence, the Vice Chair) of the Board of Directors of the Successor Agency is hereby authorized to execute the First Amendment to the Disposition Agreement and to complete the disposition of the property. Section 3. The members of the Oversight Board and officers and staff of the Successor Agency are hereby authorized and directed, jointly and severally, to do any and all things which they may deem necessary or advisable to effectuate this Resolution. -2- RESOLUTION NO. OB-139 Section 4. This Resolution shall become effective in accordance with HSC Section 34181(f). APPROVED and ADOPTED this 25THday of JANUARY , 2016. AYES: JONATHAN, PACK, RODRIGUEZ, and SPIEGEL NOES: NONE ABSENT: BUCK and KINNAMON ABSTAIN: NONE ifal a.,,, ROBERT A. SPIEGEII, C ATTEST: RAC' " L E D. KLASSEN, S - ' ETARY OVERSIGHT BOARD FOR THE SUCCESSO AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY -3- RESOLUTION NO. OB - 139 EXTENSION OF CLOSING DATE OF AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS Foresite Escrow ("Escrow") 41-995 Boardwalk, Suite G-2 Palm Desert, CA 92211 Attention: Esther Lopez, Senior Escrow Officer ("Escrow Holder") CONTRACT NO. SA34300 Escrow No: 063208-EL This Extension of Closing Date of Agreement of Purchase and Sale and Escrow Instructions ("Extension Agreement") is dated for reference purposes as of this 10th day of December, 2015, by and between the SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY, a public entity ("Seller"), and DESERT EQUITY GROUP, LLC, a California limited liability company ("Buyer") (hereinafter collectively, "Parties"). This Extension Agreement is made with reference to the following facts: RECITALS WHEREAS, Buyer and Seller entered into that certain Agreement of Purchase and Sale and Escrow Instructions dated April 6, 2015 ("Agreement") regarding the sale of real property located in the City of Palm Desert, California and generally referred to as APN 620-430-024 and 025, and as more particularly described in Exhibit "A" to the Agreement ("Property"); and WHEREAS, Buyer contemplates the development of a residential assisted living facility and a residential short term memory care facility on the Property ("Project") and towards that end has expended significant sums of money in the development of a preliminary site plan, engineering, environmental and other entitlement work for consideration by the City of Palm Desert ("City") in Buyer's application for approval of the Project; and WHEREAS, Paragraph 8.3 of the Agreement sets forth a Closing Date for this transaction of no later than January 1, 2016 ("Closing Date"); and WHEREAS, Buyer is ready, willing and able to close on the Closing Date as set forth in the Agreement; and WHEREAS, Seller has been approached by the Coachella Valley Water District, a government agency, ("CVWD") expressing its desire to acquire an one acre portion of the Property (to be located at the southwest corner of the Property) from Seller for use as a well 1 72500.00000\22817929.1 RESOLUTION NO. OB - 139 CONTRACT NO. SA34300 site("Proposal"); and WHEREAS, Seller desires to enter into negotiations with CVWD to consider the Proposal and has requested that Buyer consider reducing the amount of acreage it has exclusive rights to acquire under the Agreement; and WHEREAS, Buyer will incur a delay in the processing of its application for the Project with the City, and additional costs to reconfigure its site plan and related application materials in order to accommodate the Proposal; and WHEREAS, Buyer has expressed its willingness to entertain the Proposal from Seller and/or CVWD under certain conditions which are enumerated below. WHEREAS, Paragraph 12.3 of the Agreement states that no modification to the Agreement shall be deemed valid unless in writing and signed by both Buyer and Seller. NOW THEREFORE, in consideration of the mutual promises and covenants made by both the Buyer and Seller herein, the sufficiency and adequacy of which are hereby acknowledged by both Buyer and Seller, the Parties do hereby agree as follows: TERMS AND CONDITIONS 1.0 The recitals set forth above are expressly made part of this Extension Agreement. 2.0 Seller shall be provided time to conduct negotiations with CVWD in order to ascertain both the desirability and feasibility of CVWD's Proposal, and to obtain any necessary approvals in connection therewith. Seller is hereby provided the option ("Option") to retain the portion of the Property to be transferred to CVWD pursuant to the Proposal (the "Well Site Parcel"), and thereby reduce the Property to be sold to the Buyer by that portion to be transferred to CVWD (the Property, as reduced, the "Adjusted Property"). Seller must exercise the option to retain the Well Site Parcel by delivery of written notice thereof to the Buyer by not later than March 15, 2016. If Seller exercises this option, Seller shall be responsible for providing, at Seller's expense, all necessary approvals for the creation of the Well Site Parcel 3.0 Following Seller's delivery of written notice of its election to retain the Well Site Parcel or Seller's written notice that such option will not be exercised, or following the expiration of the Option, Buyer may close on the purchase of the Property or the Adjusted Property, as applicable, before April 15, 2016, at the original Purchase Price as set forth in the Agreement, except that, if applicable, the Purchase Price will be reduced on a pro rata square foot basis for the reduction in amount of the property to be sold by the square footage of the Well Site Parcel. 4.0 If the Closing Date on the purchase of the Property or Adjusted Property does not occur on or before April 15, 2016, the Property (or the Adjusted Property, if applicable) will be re -appraised ("Re -appraisal"), at Seller's expense, based upon the same general parameters that applied to the 2 72500 00000\22817929.1 RESOLUTION NO. OB - 139 CONTRACT NO. SA34300 original Appraisal. The Purchase Price for the Property or the Adjusted Property will be the fair market value of such property as determined by the Re -appraisal. In the event the Re -Appraisal increases the fair market value of the Property or the Adjusted Property by more than 5% from the Appraisal, calculated on a per acre basis, Buyer shall have the right to terminate this Agreement and receive back the Deposit as provided in the Agreement. 5.0 Notwithstanding Paragraph 12.9 of the Agreement expressly stating "Time is of the Essence," the Closing Date set forth in the Agreement is hereby extended to October 15, 2016. 6.0 In the event Seller has not received all necessary approvals, including the approval of the California Department of Finance ("DOF"), of the Seller's entering into this Extension Agreement, by March 15, 2016 (the "Extension Agreement Approval"), each of the dates referred to in paragraphs 2.0, 3.0, 4.0 and 5.0 above will be further extended by the number days such approval occurs after March 15, 2016. 7.0 Unless the Closing Date on the purchase of the Property or Adjusted Property, as applicable, occurs on or before April 15, 2016, Buyer shall have 180 days following the Seller's obtaining of the Extension Agreement Approval to submit in good -faith a complete entitlement package to the City for the approval of the Project (the "Entitlement Package"). In the event the Closing Date on the purchase of the Property or Adjusted Property, as applicable, does not occur on or before April 15, 2016, the City's receipt of the Entitlement Package will be an additional condition to the obligation of the Seller to sell the Property (or the Adjusted Property, as applicable) pursuant to Section 8.6(a) of the Agreement. 8.0 Both Buyer and Seller are deemed to have jointly participated in the negotiating, drafting and preparation of this Extension Agreement and both have had independent legal review this document. 9.0 This Extension Agreement shall not create any third party beneficiary rights with CVWD and/or any other third party individual, organization and/or entity. 10.0 Except as otherwise stated herein, all terms and conditions of the Agreement shall remain in full force and effect. In the event of a conflict, however, or difference of interpretation in terms between the Agreement and this Extension Agreement, this Extension Agreement shall control. 11.0 Escrow Holder is hereby instructed to amend the terms and conditions of the Escrow to reflect modification to same as set forth in this Extension Agreement. 12.0 Buyer and Seller shall each bear their own attorneys fees and costs associated with this Extension Agreement. 13.0 This Extension Agreement is subject to the approval of the Seller's Oversight Board and the California Department of Finance, and is voidable by the Seller in the event the approval of such entities is not received. 3 72500.00000\22817929 1 RESOLUTION NO. OB - 139 CONTRACT NO. SA34300 UNDERSTOOD AND AGREED SELLER: SUCCESSOR AGENCY TO THE PALM APPROVED AS TO FORM AND DESERT REDEVELOPMENT AGENCY CONTENT BY: BY: John M. Wohlmuth Robert W. Hargreaves, Executive Director Agency Counsel BUYER: DESERT EQUITY GROUP, LLC BY: William S. Bonnheim, Managing Member 4 72500.00000\22817929.1 RESOLUTION NO. OB - 139 [THIS PAGE LEFT INTENTIONALLY BLANK.]