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HomeMy WebLinkAboutC22690 Desert Wells 237 - American Realty Trust - Formation of Assessment DistrictCITY OF PALM DESERT STAFF REPORT REQUEST: APPROVAL OF DEPOSIT AND REIMBURSEMENT AGREEMENTS WITH DESERT WELLS 237, LLC AND AMERICAN REALTY TRUST, INC. FOR COSTS ASSOCIATED WITH THE FORMATION OF AN ASSESSMENT DISTRICT SUBMITTED BY: DENNIS M. COLEMAN, REDEVELOPMENT FINANCE MANAGER DATE: MAY 13, 2004 CONTENTS: DEPOSIT AND REIMBURSEMENT AGREEMENT WITH DESERT WELLS 237, LLC DEPOSIT AND REIMBURSEMENT AGREEMENT WITH AMERICAN REALTY TRUST, INC. SITE MAP LIST OF GENERAL IMPROVEMENTS BEING CONSIDERED Recommendation: By Minute Motion, the Council approve the Deposit and Reimbursement Agreements with Desert Wells 237, LLC, and American Realty Trust, Inc., for the reimbursement of costs associated with the formation of an assessment district, Executive Summary: Desert Wells 237, LLC, and American Realty Trust, Inc., have requested the City form Assessment District No. 2004-1 forthe purposes of financing certain public improvements. Both entities are owners of real property in the City that will be benefitted by the improvements. The City desires to be reimbursed for all of its costs and expenses associated with the formation of the new assessment district. Therefore, the two entities and the City desire to enter into agreements to provide forthe deposit of funds with the City in order to reimburse the City of all of the costs and expenses associated with the formation of the district and issuance of bonds in connection with such a district. Discussion: Desert Wells 237, LLC, and American Realty Trust, Inc., (Depositors) each agree to deposit $25,000 with the City to pay for their proportionate share of the total aggregate G:\RDA\Dennis Coleman \DATA\WP\REPORTS\Univ Park- Assesment District Formation.wpd Staff Report Approval of Deposit and Reimbursement Agreements with Desert Wells 237, L and American Realty Trust, Inc.LC May 13, 2004 Page 2 costs required to be incurred in connection with the proceedings for the formation of t district. These costs are to be paid prior to the sale and the issuance of bonds. If he during the formation of the district, payment of the Depositor's proportionate share of authorized costs that have already been incurred, or are reasonably expected to be incurred cause written the Depositor's deposit to fall below $1.00, the Finance Director shall make a n n demand upon the Depositors for an additional deposit of monies. If the district is formed and bonds are issued, sold and delivered, the amounts de by the Depositors pursuant to this agreement shall be reimbursable to the De osit posited p s from the proceedings of the bonds. In the event the district is not formed or bonds are not ultimately sold, the Depositors agree to pay to the City within ten business days, proportionate share of all authorized costs that have been incurred, less the amount that had previously been deposited. Staff is recommending that the City Council approve Agreements with Desert Wells 237, LLC and Americ nthe Reallty Trust, Inc.Reimbursement Submitted by: Department Head: Dennis M. Coleman • Redevelopment Finance Manager DMC:DFB:mh Approval: Carlos L. Orte City Manager/Executive Director G:ARDA\Dennis Coleman\DATA\WP1REPORTSIUniv Park- Assesment District Formation.wpd David Yri.. -n Directoo/': Redevelopment Paul S. Gibson Director of Finance DEPOSIT AND REIMBURSEMENT AGREEMENT This DEPOSIT AND REIMBURSEMENT AGREEMENT (the "Agreement") is made and entered into as of this 13th day of May, 2004, by and between the City of Palm Desert, a municipal corporation (the "City") and American Realty Trust, Inc. (the "Depositor"). RECITALS: A. The Depositor has requested the City to form Assessment District No. 2004-1 (the "District") for the purpose of financing certain public improvements (the "Improvements"). The proposed boundaries of the District are described in Exhibit A, attached hereto and incorporated herein. The Improvements to be financed through the District are set forth in Exhibit B, attached hereto and incorporated herein. B. The City desires to be reimbursed for all of its costs and expenses associated with the formation of the District and the issuance of bonds in connection with such District. C. The Depositor is one of two owners of real property in the City that will be benefited by the Improvements (each a "Participant" and collectively the "Participants"). The City has determined a fair and equitable proportionate share of the costs and expenses associated with the formation of the District and the issuance of bonds in connection with such District to be paid by each Participant. D. The Depositor and the City desire to enter into this Agreement to provide for the Depositor to deposit funds with the City in order to reimburse the City for a portion of the costs and expenses associated with the formation of the District and the issuance of bonds in connection therewith. The City and the Depositor contemplate that the City will enter into a similar deposit and reimbursement agreement with the other Participant, which will provide for such other Participant to deposit funds with the City to pay for its respective fair and equitable proportionate share of the costs and expenses associated with the formation of the District and the issuance of bonds in connection therewith. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties hereto agree as follows: 1. Recitals. Each of the above recitals is incorporated herein and is true and correct. 2. Proposed Formation of District and Issuance of Bonds; Depositor's Deposit. P6401/0001/766565.2 kg4 (a) The Depositor agrees to deposit moneys with the City to pay for a portion of the total aggregate costs required to be incurred and o paid t prieor to the and the bonds in connection with (i) the proceedings for theapproval review and oft and the issuance of bonds in connection appraisals,rewith; and water plans,Il) enve environmental assessments, feasibility engineering documents, appra , studies and other documents relating to the Improvements. Suchn portionce rt`i fifty pertircent of the total aggregate costs described in the preceding Share"). (b) The City agrees to use the Depositor's deposits solely to pay: (i) the Depositor's Proportionate Share of the costs ath D str cexpent and thered issuance of bby the londs ty in connection with proceedings for the formation of in connection therewith, including but not limited the d disclosure counselSessuer's engineer, financial advisor, appraiser, bond counsel, counsel and other consultants deemed necessary by the City, ("Formation and Issuance Costs"); and (ii) the Depositor's Proportionate Share of fees and costs customarily required to be paid by owners and potential developers Im rovethe City in connection with ments ("Plan Checking the review of plans and engineering documents for p Fees"). The Formation and Issuance Costs and For the lan Checking a purposes of this AgreeFees are lmentela referred to herein as the "Authorized Costs."pu p Plan Checking Fee is deemed to be "incurred"to be by the City City time such Participantan Checking Fee would customarily be required paid to connection with any application or other filing made by a Participant to the City. (c) To the extent the District is not formed or bonds are not ultimately sold, the Depositor agrees to pay to the City within ten business days of a written demand by the Finance Director of the City the Depositor's amounpt of'ofunds that havenate Share of all Authorized Costs that have been incurred, le previously been deposited by the Depositor pursuant tothis to Agreement (e(fcludi of 9 those amounts, if any, advanced by the Depositorpursuant Section 2). (d) The City will keep records with complete and correct entries of all deposits made by the Depositor pursuant to this reimbursement agreement betweede n theby the other Participant pursuant to a deposit and re and such other Participant and all Authorized Costs incurredher y the ent, tCity and/or paid from any deposits made by the Depositor and the the share of such Authorized Costs allocated to each Participt. Within a reasonable a summary of theforegoing�me following a request, the City will provide to the Depositor (e) The Depositor agrees to deposit the sum of $25,000.00 by wire or cashier's check within two business days of the aemtion of this of the Depositor's Agreement. Proportionate judgment of the Finance Director of the City, payment Share of Authorized Costs that have already ethe n incurredand i torfall below expected to be incurred by the City will cause $1.00, the Finance Director of the City shall written amountdemand halploben hthe e Depositor amount for an additional deposit of moneys. Such additional P6401/0001/766565.2 2 r such eater needed to bring the Depositor's deposit to a balance r of the City to 0be oe�essary tomeet amount that is anticipated by the Finance Direct the Depositor's Proportionate Share of Authorized Costs to e incurreb cashiered bychthe City.n tee Depositor shall deposit such additional amount by wire o business days of receipt of the demand of the Finan�fe' Director s Sect on or the other Participant the Depositor fails to make the deposit required by fails to make the deposit required by the deposimandreimbursement ease the proceedings fore the ent between the City and such other Participant, the City y formation of the District and the issuance of bonds until all required moneys have been deposited with the City. (f) In the event that the other Participant sucheother posit required pursuant to the deposit and reimbursementagreement between Participant and the City, the City may, but is not k eire to, is otiify frequirethe dep osi or. The Depositor, at its sole discretion and at its own risk, may, but an advance ("Advance") to the City equal to the deposit df by yr ahey other AdvPer made by the ipant. The City shall have no obligation to reimburse the Depositor Depositor pursuant to this paragraph. 3. Reimbursement Procedure. If the District isot b r the Depositor (less return to the Depositor any funds which have been depositedformed, y amounts, if any, advanced by the Depositor purant oparagraph Proportionaf t Sha) of eetof any ion 2, hereof) and which are not needed to pay for the Depositor's Authorized Cost and the City shall have no liabil{oty to r the Depositor committed or expended by the any amounts previously deposited by the Depose City to pay for the Depositor's Proportionate Share of Authorized Costs. Such returned funds shall be with interest, determined at the rate he�ssued,lished sold and by the Finance Director of the City. If the District is formed and bonds a delivered in connection therewith, the amounts deposited by the Depositor pursuant to this Agreement shall be reimbursable to the Depositor from the proceeds of the bonds. 4. Discretion of City. The ,Depositor shawl be in the solnds that ediscretion on of theDistrict ftthe and the issuance of bonds in connection therewith City. No provision of this Agreement shall to issue construed and deas a pverr the bondswarranty The or agreement by the City to form the District o City shall have no liability to the Depositor pursuant to this Agreement for its decision not to form the District or issue, sell and deliver the bonds. 5. Notices. Any notice to be provided pursuant to this Agreement shall be delivered to the following addresses: Depositor: American Realty Trust, Inc. 1800 Valley View Lane, Suite 300 Dallas, Texas 75234 P6401/0001/766565.2 3 Copy to: City: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Copy to: Richards, Watson & Gershon 355 South Grand Avenue, 40th Floor Los Angeles, California 90071-3101 Each party may change its address for delivery of notice by delivering written notice o such change of address to the other party. f 6. Assianment. The Depositor may not assign its interest in this Agreement without the prior written consent of the City. 7. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent permitted by law. 8. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the matters provided for herein. 9. Non -Liability of Officials and Employees of the City. No representative, agent, attorney, consultant, or employee of the City shall personally be liable to the Depositor in the event of any default by the City under the terms of this Agreement. 10. Independent Contractor. It is hereby agreed that the Depositor shall act and be an independent contractor and not an agent employee of the City. 11. Time of Essence. Time is of the essence in the performance of this Agreement. 12. Authority to Execute. The persons executing this Agreement on behalf of the parties warrant that they are duly authorized to execute this Agreement. 13. Release. Except in the event of the City's sole negligence or willful misconduct, the Depositor hereby fully and irrevocably releases, waives, acquits and discharges the City and its elective or appointive boards, council members, officers, and employees of and from any and all claims, rights, grievances, demands, damages, debts, liabilities, obligations, costs, expenses, causes of action, or damages of any nature, including attorneys' fees, whether known or unknown, existing or potential, anticipated or unanticipated, or which may hereafter be sustained, to the extent that such claims arise out of, or are related to, this Agreement. 14. Attorneys' Fees. If any party brings an action to enforce the terms hereof or declare its rights hereunder, the prevailing party in any such action shall be entitled to its reasonable attorneys' fees to be paid by the losing party as fixed by the court. P6401/0001/766565.2 15. Interpretation. This Agreement shall be interpreted as though prepared by both parties. 16. Amendments. This Agreement may be amended or modified only by written instrument signed by all parties. 17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. 18. Governing Law. This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California. 19. No Third Party Beneficiaries. No person or entity shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to confer upon any person or entity, other than the City and the Depositor, any rights, remedies, obligations or liabilities under or by reason of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. CITY OF PALM DESERT By: Robert A. Spiegel, Mayor DEPOSITOR AMERICAN REALTY TRUST, INC. By: z:.,_ Dan S. Allred Its: Vice President By: Its: P6401 /0001 /766565.2 5 EXHIBIT "A" Proposed Boundaries of Assessment District No. 2004-1 TO BE DETERMINED P6401 /0001 /766565.2 A-1 EXHIBIT "B" TO BE DETERMINED P6401/0001/766565.2 B-1 CONSULTING LETTER OF TRANSMITTAL To: City of Palm Desert Redevelopment Agency 73-510 Fred Waring Palm Desert, CA. 92260 ATTN: Justin McCarthy, Assistant to the Director DATE: 4/27/2004 RBF JOB No: 20-100420 REFERENCE: DESCRIPTION: TPM 31730 University Park SENT To You VIA: ❑ Mail ❑ Blueprinter 0 Overnight Delivery (Carrier) ❑ E-Mail ❑ Your Pick -Up 0 RBF Messenger ® Messenger (Other Courier) No. of No. of DESCRIPTION Copies Originals 1 5 Deposit and Reimbursement Agreement,Tentative Parcel Map 31730, from Desert Wells 237,LLC 5 Deposit and Reimbursement Agreement,Tentative Parcel Map 31730, from American Realty Trust, Inc. 1 1 Desert from American Realty Investors, Inc for Assessment District. Check no. 004586 in the amount of $25,000, payable to City of Palm SENT FOR YOUR: ❑ Approval ❑ Review 0 Comments ❑ Per Your Request ❑ Files ❑ Signature ® Use 0 Information ❑ REMARKS: It is our understanding that $25,000 fee from Desert Wells 237,LLC has already been submitted to your office. COPIES TO: ULTINGI N. i c ini, P.E. ct Manager Document2 74-410 Highway 111, Palm Desert, CA 92260-4114 ■ 760.346.7481 • Fax 760.346.8315 Offices located throughout California, Arizona & Nevada in www.RBF.com printed on recycled paper AMERICAN REALTY INVESTORS INC. April 26, 2004 RBF Consulting Attn: Bob Ross 74410 Highway 111 Palm Desert, CA 92260 Re: $25,000 check for ART's 1/2 of Appraisal work done for the Palm Springs Land Dear Sirs: Per Dan Allreds instructions, I am sending to you a check in the amount n the n of $25,000 0 0 which is ART's agreed to amount for the Appraisal work done s Leasehold land. If you have any questions, please call Dan Allred at 214-505-1824. Sincerely, can RealtTrust, Lee Burgin Vice President Enclosure One Hickory Centre 1800 Valley View Lane Suite 300 Dallas, Texas 75234 469-522-4200 Fax 469-522-429 CITY OF PALM DESERT REORDER FT 905 • U.S. PATENT NO. 5538290.5575508. 5641183. 578535: CHECK PAYMENT NBR. 004586 DATE 04/26/04 A Y INVOICE DESCRIPTION NET AMOUNT 042604 ARI ASSESSMENT DISTRICT APPRAISAL **MANUAL CHECK** AMERICAN REALTY INVESTORS, INC. 1800 Valley View Lane, Ste 300 Dallas, Texas 75234 TOTALS 25,000.00 $25,000.00 :THIS CHECK IS VOID WITHOUT A BLUE & PURPLE BACKGROUND 'ANCVAN.ARTIFICIAL FINGERPRINT & CERTIFICATION SEAL WATERMARK.ONTHE BACK - HOLDATANGLE TO VIEW AMERICAN REALTY INVESTORS, INC. 1800 Valley View Lane, Ste 300 Dallas, Texas 75234 Ph. (469) 522-4200 DATE 04/26/04 SOUTHTRUST BANK 2895 EASTERN BYPASS MONTGOMERY, AL 36116 **TWENTY FIVE THOUSAND DOLLARS AND 00/100** TO THE `' CITY OF PALM DESERT ORDER OF 61 136 622 004586 AMOUNT $25,000.00 SIGNATURE HAS ACOLORED BACKGROUND .: BORDER CONTAINSMICROPRINTING 0004E8611' 406 2 20 L3681: 6 L 304 9630 SEE ENDORSEMENT AREA ON BACK FOR U.S. PATENT 553829C.5575F08.5F4', s&3' DEPOSIT AND REIMBURSEMENT AGREEMENT This DEPOSIT AND REIMBURSEMENT AGREEMENT (the "Agreement") is made and entered into as of this 13th day of May, 2004, by and between the City of Palm Desert, a municipal corporation (the "City") and Palm Desert 124, Inc. (the "Depositor") for Desert Wells 237, LLC. RECITALS: A. The Depositor has requested the City to form Assessment District No. 2004-1 (the "District") for the purpose of financing certain public improvements (the "Improvements"). The proposed boundaries of the District are described in Exhibit A, attached hereto and incorporated herein. The Improvements to be financed through the District are set forth in Exhibit B, attached hereto and incorporated herein. B. The City desires to be reimbursed for all of its costs and expenses associated with the formation of the District and the issuance of bonds in connection with such District. C. The Depositor is one of two owners of real property in the City that will be benefited by the Improvements (each a "Participant" and collectively the "Participants"). The City has determined a fair and equitable proportionate share of the costs and expenses associated with the formation of the District and the issuance of bonds in connection with such District to be paid by each Participant. D. The Depositor and the City desire to enter into this Agreement to provide for the Depositor to deposit funds with the City in order to reimburse the City for a portion of the costs and expenses associated with the formation of the District and the issuance of bonds in connection therewith. The City and the Depositor contemplate that the City will enter into a similar deposit and reimbursement agreement with the other Participant, which will provide for such other Participant to deposit funds with the City to pay for its respective fair and equitable proportionate share of the costs and expenses associated with the formation of the District and the issuance of bonds in connection therewith. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties hereto agree as follows: 1. Recitals. Each of the above recitals is incorporated herein and is true and correct. 2. Proposed Formation of District and Issuance of Bonds; Depositor's Deposit. P6401/0001/766565.2 (a) The Depositor agrees to deposit moneys with the City to pay for a portion of the total aggregate costs required to be incurred and paid prior to the sale of bonds in connection with (i) the proceedings for the formation of the District and the issuance of bonds in connection therewith; and (ii) the review and approval of plans and engineering documents, appraisals, water plans, environmental assessments, feasibility studies and other documents relating to the Improvements. Such portion is fifty percent of the total aggregate costs described in the preceding sentence (the "Proportionate Share"). (b) The City agrees to use the Depositor's deposits solely to pay: (i) the Depositor's Proportionate Share of the costs and expenses incurred by the City in connection with proceedings for the formation of the District and the issuance of bonds in connection therewith, including but not limited to, the costs of an assessment engineer, financial advisor, appraiser, bond counsel, disclosure counsel, issuer's counsel and other consultants deemed necessary by the City, ("Formation and Issuance Costs"); and (ii) the Depositor's Proportionate Share of fees and costs customarily required to be paid by owners and potential developers to the City in connection with the review of plans and engineering documents for the Improvements ("Plan Checking Fees"). The Formation and Issuance Costs and Plan Checking Fees are collectively referred to herein as the "Authorized Costs." For the purposes of this Agreement, a Plan Checking Fee is deemed to be "incurred" by the City at the time such Plan Checking Fee would customarily be required to be paid to the City by a Participant in connection with any application or other filing made by a Participant to the City. (c) To the extent the District is not formed or bonds are not ultimately sold, the Depositor agrees to pay to the City within ten business days of a written demand by the Finance Director of the City the Depositor's Proportionate Share of all Authorized Costs that have been incurred, less the amount of funds that have previously been deposited by the Depositor pursuant to this Agreement (excluding those amounts, if any, advanced by the Depositor pursuant to paragraph (f) of this Section 2). (d) The City will keep records with complete and correct entries of all deposits made by the Depositor pursuant to this Agreement and deposits made by the other Participant pursuant to a deposit and reimbursement agreement between the City and such other Participant and all Authorized Costs incurred by the City and/or paid from any deposits made by the Depositor and the other Participant, together with the share of such Authorized Costs allocated to each Participant. Within a reasonable time following a request, the City will provide to the Depositor a summary of the foregoing. (e) The Depositor agrees to deposit the sum of $25,000.00 by wire or cashier's check within two business days of the execution of this Agreement. If, in the judgment of the Finance Director of the City, payment of the Depositor's Proportionate Share of Authorized Costs that have already been incurred and that are reasonably expected to be incurred by the City will cause the Depositor's deposit to fall below $1.00, the Finance Director of the City shall make a written demand upon the Depositor for an additional deposit of moneys. Such additional amount shall be the amount ‘1/(f P6401 /0001 /766565.2 needed to bring the Depositor's deposit to a balance of $25,000.00, or such greater amount that is anticipated by the Finance Director of the City to be necessary to meet the Depositor's Proportionate Share of Authorized Costs to be incurred by the City. The Depositor shall deposit such additional amount by wire or cashiers' check within ten business days of receipt of the demand of the Finance Director of the City. In the event the Depositor fails to make the deposit required by this Section or the other Participant fails to make the deposit required by the deposit and reimbursement agreement between the City and such other Participant, the City may cease the proceedings for the formation of the District and the issuance of bonds until all required moneys have been deposited with the City. (f) In the event that the other Participant fails to make a deposit required pursuant to the deposit and reimbursement agreement between such other Participant and the City, the City may, but is not required to, notify the Depositor. The Depositor, at its sole discretion and at its own risk, may, but is not required to, make an advance ("Advance") to the City equal to the deposit owed by the other Participant. The City shall have no obligation to reimburse the Depositor for any Advance made by the Depositor pursuant to this paragraph. 3. Reimbursement Procedure. If the District is not formed, the City shall return to the Depositor any funds which have been deposited by the Depositor (less amounts, if any, advanced by the Depositor pursuant to paragraph (f) of Section 2, hereof) and which are not needed to pay for the Depositor's Proportionate Share of any Authorized Cost and the City shall have no liability to the Depositor to reimburse it for any amounts previously deposited by the Depositor and committed or expended by the City to pay for the Depositor's Proportionate Share of Authorized Costs. Such returned funds shall be with interest, determined at the rate and by the method established by the Finance Director of the City. If the District is formed and bonds are issued, sold and delivered in connection therewith, the amounts deposited by the Depositor pursuant to this Agreement shall be reimbursable to the Depositor from the proceeds of the bonds. 4. Discretion of City. The Depositor understands that formation of the District and the issuance of bonds in connection therewith shall be in the sole discretion of the City. No provision of this Agreement shall be construed as a promise, warranty or agreement by the City to form the District or to issue, sell and deliver the bonds. The City shall have no liability to the Depositor pursuant to this Agreement for its decision not to form the District or issue, sell and deliver the bonds. 5. Notices. Any notice to be provided pursuant to this Agreement shall be delivered to the following addresses: Depositor: Palm Desert 124, Inc. 5005 Calle San Raphael, Ste. B-1 Palm Springs, California 92264 P 6401 /0001 /766565.2 3 Copy to: City: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Copy to: Richards, Watson & Gershon 355 South Grand Avenue, 40th Floor Los Angeles, California 90071-3101 Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party. 6. Assignment. The Depositor may not assign its interest in this Agreement without the prior written consent of the City. 7. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent permitted by law. 8. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the matters provided for herein. 9. Non -Liability of Officials and Employees of the City. No representative, agent, attorney, consultant, or employee of the City shall personally be liable to the Depositor in the event of any default by the City under the terms of this Agreement. 10. Independent Contractor. It is hereby agreed that the, Depositor shall act and be an independent contractor and not an agent employee of the City. 11. Time of Essence. Time is of the essence in the performance of this Agreement. 12. Authority to Execute. The persons executing this Agreement on behalf of the parties warrant that they are duly authorized to execute this Agreement. 13. Release. Except in the event of the City's sole negligence or willful misconduct, the Depositor hereby fully and irrevocably releases, waives, acquits and discharges the City and its elective or appointive boards, council members, officers, and employees of and from any and all claims, rights, grievances, demands, damages, debts, liabilities, obligations, costs, expenses, causes of action, or damages of any nature, including attorneys' fees, whether known or unknown, existing or potential, anticipated or unanticipated, or which may hereafter be sustained, to the extent that such claims arise out of, or are related to, this Agreement. 14. Attorneys' Fees. If any party brings an action to enforce the terms hereof or declare its rights hereunder, the prevailing party in any such action shall be entitled to its reasonable attorneys' fees to be paid by the losing party as fixed by the court. P6401 /0001 /766565.2 4 15. Interpretation. This Agreement shall be interpreted as though prepared by both parties. 16. Amendments. This Agreement may be amended or modified only by written instrument signed by all parties. 17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. 18. Governing Law. This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California. 19. No Third Party Beneficiaries. No person or entity shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to confer upon any person or entity, other than the City and the Depositor, any rights, remedies, obligations or liabilities under or by reason of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. CITY OF PALM DESERT By: Robert A. Spiegel, Mayor DEPOSITOR PALM DESERT 124, INC. By: ichael Marix Its: President P6401/0001/766565.2 5 EXHIBIT "A" Proposed Boundaries of Assessment District No. 2004-1 TO BE DETERMINED P6401 /0001 /766565.2 A-1 EXHIBIT "B" TO BE DETERMINED P6401 /0001 /766565.2 B-1 Desert Wells 237, LLC April 26, 2004 Carlos L. Ortega, City Manager City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 Re: University Village CFD/Assessment District Dear Mr. Ortega: Thank you and your staff for taking the time to meet with us last Tuesday regarding our University Village project. We have completed our application and submitted it, along with a $25,000 deposit to Dennis Coleman. American Realty Trust, the other applicant, will be providing an additional application and $25,000 deposit. We have not yet decided on whether the proposed financing will be an assessment district or a community facilities district. We are in the process of forming our financing team and will make that decision very shortly. To that end, we request that Lonnie Odom of Stinson Securities and Pam Newcomb of Kinsell, Newcomb & De Dios act as underwriters of the bonds for University Village. I've worked with Lonnie and Pam on projects in Cathedral City and Indio over the years and we've developed a comfort level among ourselves that I believe will be beneficial to a successful financing for University Village. Since time is of the essence in this project, we would like to get started as soon as possible. We would like very much to close this issue in late August, or early September at the latest. We would like to have an `all hands' meeting with staff at their earliest convenience. Again, thank you for your help. We look forward to working with you. Desert Welts 124, Inc. Manager Michael Marix President cc: Dennis Coleman Desert Wells 237, LLC 5005 Calle San Raphael, Suite B-I Palm Springs, California 760 778 4337 voice 760 778 4417 fax email: msmarix@comerstonedevelopers.com it �� rr ,r,,,� 1-800-942-6222 FOR 15;4)CnnIct'CT�'l CPIn�SAS W cells `Z.3t a -C- oos c lla� r) sk 3H yr s f,c s ! t -2 6, i PAY TO THE ORDER OF Pct ew DATE ! 1 I 2-69 Of B VALLEY INDEPENDENT BANK. 901 E. Tahquitz Canyon Way, Palm Springs, CA 92262 j _I _jam 1:L222384201: 0L311150557811' 90-3B42/ 1222 DOLLARS El5E GENERAL IMPROVEMENTS BEING CONSIDERED Street Improvements Sidewalks Curbs Drainage Sewage Development Fees