HomeMy WebLinkAboutDDA & Amendments - Intrawest Resort Ownership CorporationCITY OF PALM DESERT/PALM DESERT REDEVELOPMENT AGENCY
STAFF REPORT
REQUEST: APPROVE THE TRANSFER OF THE DISPOSITION
DEVELOPMENT AGREEMENT AND ITS AMENDMENTS AND
THE DEVELOPMENT AGREEMENT FROM INTRAWEST
RESORT OWNERSHIP CORPORATION TO ITS PARENT
COMPANY, INTRAWEST CORPORATION
SUBMITTED BY: DAVE YRIGOYEN, DIRECTOR OF REDEVELOPMENT
DATE: MAY 13, 2004
Recommendation:
By Minute Motion, that the City Council and the Agency Board approve the
transfer of the Disposition Development Agreement and its amendments
and the Development Agreement from Intrawest Resort Ownership
Corporation to its parent company, Intrawest Corporation, and authorize
the Agency and City to execute the agreements authorizing said transfer.
Discussion:
Secion 6.2.4 of the Disposition and Development Agreement (DDA) between
Intrawest Resort Ownership Corporation ("IROC") and the Palm Desert
Redevelopment Agency (the "Agency") provides for the transfer of the DDA to an
Affiliate as described in the DDA on the following material terms and conditions
set forth in that section:
1. The Affiliate assumes in writing all obligations of IROC set forth in the
DDA;
2. IROC, or a corporation that controls IROC, controls such Affiliate;
3. IROC confirms that all of its obligations set forth in the DDA are joint and
several obligations with such Affiliate;
4. IROC confirms that the Affiliate has an initial capitalization of not less than
$10,000,000;
5. IROC, or a corporation that controls IROC, has at least a 50% interest in
the economic interests in such Affiliate.
Staff Report
Approve Intrawest Transfer to an Affiliate
Page2of2
May 13, 2004
On June 25, 1998, the Agency and City authorized the transfer of IROC's
obligation under the DDA to Resort Ventures, L.P., with the same provisions as
requested under Section 6.2.4 of the Agreement; however, IROC was not
released from the obligations of the DDA.
IROC proposes to transfer its rights and obligations under the DDA and the
Development Agreement (DA) to Intrawest Corporation, its parent company in
accordance with Section 6.2.4 and has submitted the materials to demonstrate
compliance with Section 6.2.4 of the DDA as required by the Agency identifying
such a transfer to an affiliate in accordance with the provision of the DDA. The
Agency's and City's attorneys have reviewed the documents submitted and have
found that IROC is within its rights pursuant to the DDA and the DA to
accomplish such a transfer. Furthermore, that said transfer does not impact the
Agency's and City's contractual rights under the DDA and DA.
Submitted by:
Dave Yrigo
Director J' edevelopment
mh
Approval:
Carlos L. Orte
City Manager/Executive Director
Approval:
in McCarth
Redevel
CONSENT AND AGREEMENT,
THIS AGREEMENT dated for reference May 17, 2004
BY AND AMONG:
CITY OF PALM DESERT, a municipal corporation
(the "City")
OF THE FIRST PART
AND:
RESORT VENTURES, L.P., a California limited partnership
having an office at 2450 Colorado Avenue, Suite 400E, Santa
Monica, California, 90404
("RVLP")
AND:
OF THE SECOND PART
INTRAWEST RESORT OWNERSHIP CORPORATION, a
British Columbia corporation having an office at Suite 326 — 375
Water Street, Vancouver, British Columbia, V6B 5C6
("IROC")
AND:
OF THE THIRD PART
INTRAWEST CORPORATION, a corporation continued under
the Canada Business Corporations Act having an office at Suite
800 - 200 Burrard Street, Vancouver, British Columbia, V6C 3L6
("Intrawest")
WHEREAS:
OF THE FOURTH PART
A. The City and IROC entered into a DA 96-1 Development Agreement (the "Development
Agreement") dated as of February 27, 1997 with respect, inter alia, to the development
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VDO_DOCS #1311054 v. 1
by IROC or its assignee on certain lands (the "Project Lands") located in the City of
Palm Desert of a 600 unit time-share project (the "Project");
B. With the knowledge of the City IROC subsequently transferred and assigned to RVLP
the Project Lands and all of its right, title and interest under the Development Agreement
and RVLP assumed all of the obligations of IROC under the Development Agreement
without releasing IROC from its obligations thereunder and RVLP became the owner of
the Project Lands and the developer of the Project;
C. IROC is a wholly -owned subsidiary of Intrawest;
D. It is proposed that pursuant to the provisions of the Business Corporations Act of British
Columbia, the winding -up of IROC into its parent Intrawest (the "Winding -Up") be
approved and implemented and that in the course of the Winding -Up, all the property of
IROC be distributed to Intrawest and all the liabilities and obligations of IROC be
assumed by Intrawest;
E. Upon, in the course of, and as a consequence'of the Winding -Up:
(i)
(i)
all or substantially all of the property of IROC will become the property of
Intrawest, including, without limitation, any and all estate, right, title, interest and
claim of IROC in, to and under the Development Agreement;
(ii) Intrawest will assume and be bound by and liable for all of the liabilities and
obligations of IROC, including, without limitation, any and all liabilities and
obligations of IROC under the Development Agreement; and
IROC will be dissolved after all elements of the Winding -Up have been
completed; and
F. To facilitate the completion of the Winding -Up and the dissolution of IROC, it is
desirable that IROC be released and discharged from all of its liabilities and obligations,
including, without limitation, any and all liabilities and obligations of IROC under or
otherwise in respect of the Development Agreement.
NOW THEREFORE, in consideration of the premises and other good and valuable consideration
(the receipt and sufficiency of which are hereby acknowledged by each party hereto), the parties
hereto hereby covenant and agree as follows:
1. The City hereby:
(a) for purposes of any covenant or representation which would be breached,
restriction which would be violated, or default which would occur, pursuant to the
Development Agreement or any other agreement executed by any party in
connection with Development Agreement (collectively, the "Development
Agreement Documents") as a result of the Winding -Up and the consequences
thereof as described in Recital E hereof, irrevocably consents to the Winding -Up
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and such consequences and irrevocably waives any rights it may have as a result
of the Winding -Up or such consequences; and
(b) acknowledges, confirms and agrees that the Winding -Up and the consequences
thereof as described in Recital E hereof will not result in any breach of or default
under Development Agreement or any Development Agreement Document, nor
result in the termination of the Development Agreement or any Development
Agreement Document, or otherwise affect the terms of the Development
Agreement or any Development Agreement Document and, for greater certainty,
the City hereby acknowledges, confirms and agrees that it will continue to deal
with RVLP and with Intrawest, as the successor to IROC, on the terms and
conditions contained in the Development Agreement.
2. RVLP, IROC and Intrawest hereby acknowledge, confirm and agree that, except as set
forth herein, all rights and interests of the City created by or arising from the
Development Agreement and any and all Development Agreement Documents will
survive the Winding -Up and dissolution of IROC and will not be discharged or otherwise
prejudiced as a result of the Winding -Up and dissolution of IROC.
3. Intrawest hereby acknowledges, confirms and agrees that effective upon and concurrently
with the commencement of the Winding -Up and the distribution of the property of IROC
to Intrawest as part thereof, Intrawest will assume and be bound by and liable for any and
all liabilities and obligations of IROC to the City under the Development Agreement and
any and all Development Agreement Documents.
4. The City hereby acknowledges, confirms and agrees that effective upon Intrawest
assuming and becoming bound by and liable for any and all liabilities and obligations of
IROC under the Development Agreement and any and all Development Agreement
Documents in the course of the Winding -Up, IROC will be released and discharged from
any and all liabilities and obligations to the City under or otherwise in respect of the
Development Agreement and any and all Development Agreement Documents.
5. This Agreement will be read and construed together with the Development Agreement
and any and all Development Agreement Documents and, subject to the provisions
hereof, the terms, covenants and conditions of the Development Agreement and any and
all Development Agreement Documents will continue to be in full force and effect with
only such changes as may be necessary or desirable to reflect the Winding -Up and the
consequences thereof as described herein.
6. RVLP and Intrawest will at any time and from time to time at the request of the City
execute and deliver to the City such further documents and do all such other acts and
things as the City may reasonably request in order to give effect to the intent of this
Agreement.
7. No party hereto may assign its rights, liabilities or obligations hereunder except in
accordance with the terms of, and in conjunction with the assignment of the rights,
liabilities and obligations of such party under, the Development Agreement and any
Development Agreement Documents.
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8. This Agreement will enure to the benefit of and be binding upon the parties hereto and
their respective successors and permitted assigns.
9. This Agreement will be governed by and construed in accordance with the laws of the
State of California.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day and
year first above written.
CITY OF PALM DESERT,
a municipal corporation
By:
Authorized Signatory
ATTEST:
RESORT VENTURES, L.P., by its
general partner, INTRAWEST VENTURES, INC.
By:
Authorized Signatory
INTRAWEST RESORT OWNERSHIP CORPORATION
By:
Authorized Signatory
INTRAWEST CORPORATION
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By:
Authorized Signatory
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CONSENT AND AGREEMENT
THIS AGREEMENT dated for reference May 17, 2004
BY AND AMONG:
AND:
AND:
AND:
PALM DESERT REDEVELOPMENT AGENCY, a public
body, corporate and politic having an office at 75-510 Fred Waring
Drive, Palm Desert, California, 92260
(the "Agency")
OF THE FIRST PART
RESORT VENTURES, L.P., a California limited partnership
having an office at 2450 Colorado Avenue, Suite 400E, Santa
Monica, California, 90404
("RVLP")
OF THE SECOND PART
INTRAWEST RESORT OWNERSHIP CORPORATION, a
British Columbia corporation having an office at Suite 326 — 375
Water Street, Vancouver, British Columbia, V6B 5C6
("IROC")
OF THE THIRD PART
INTRAWEST CORPORATION, a corporation continued under
the Canada Business Corporations Act having an office at Suite
800 — 200 Burrard Street, Vancouver, British Columbia, V6C 3L6
("Intrawest")
OF THE FOURTH PART
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VDO DOCS #1310657 v. 2
WHEREAS:
A. The Agency and IROC entered into a Disposition and Development Agreement dated as
of February 13, 1997, as amended by First Amendment to Disposition and Development
Agreement dated as of August 1, 1997 (together, the "Amended DDA"), with respect,
inter alia, to the development by IROC or its assignee on certain lands (the "Project
Lands") located in the City of Palm Desert of a 600 unit time-share project (the
"Project"), and the following documents (collectively, the "Declarations") in
connection therewith:
(i)
a Declaration of Covenants, Conditions and Restrictions (Golf Course) dated as of
August 1, 1997 by and between IROC and the Agency and recorded in the County
Recorder's Office on August 29, 1997 as document number 315815;
(ii) a Declaration of Covenants, Conditions and Restrictions (Intrawest Clubhouse)
dated as of August 1, 1997 by and between IROC and the Agency and recorded in
the County Recorder's Office on August 29, 1997 as document number 315816;
(iii) a Declaration of Covenants, Conditions ad Restrictions (Desert Willow) dated as
of August 1, 1997 by and between IROC and the Agency and recorded in the
County Recorder's Office on August 29, 1997 as document number 315817; and
(iv) a Declaration of Covenants, Conditions and Restrictions (Spine Road) dated as of
August 1, 1997 by and between IROC and the Agency and recorded in the
Country Recorder's Office on August 29, 1997 as document number 315818;
B. With the knowledge of the Agency IROC subsequently transferred and assigned to RVLP
the Project Lands and all of its right, title and interest under the Amended DDA and each
of the Declaration and RVLP assumed all of the obligations of IROC under each such
document without releasing IROC from its obligations thereunder and RVLP became the
owner of the Project Lands and the developer of the Project;
C. Subsequent to the assignment to RVLP, the Agency and RVLP entered into a Second
Amendment to Disposition and Development Agreement dated as of January 23, 2003
(together with the Amended DDA, the "DDA");
D. IROC is a wholly -owned subsidiary of Intrawest;
E. It is proposed that pursuant to the provisions of the Business Corporations Act of British
Columbia, the winding -up of IROC into its parent Intrawest (the "Winding -Up") be
approved and implemented and that in the course of the Winding -Up, all the property of
IROC be distributed to Intrawest and all the liabilities and obligations of IROC be
assumed by Intrawest;
F. Upon, in the course of, and as a consequence of the Winding -Up:
(i) all or substantially all of the property of IROC will become the property of
Intrawest, including, without limitation, any and all estate, right, title, interest and
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claim of IROC in, to and under the DDA and the Declarations (collectively, the
"Primary Project Agreements");
(ii) Intrawest will assume and be bound by and liable for all of the liabilities and
obligations of IROC, including, without limitation, any and all liabilities and
obligations of IROC under the Primary Project Agreements; and
IROC will be dissolved after all elements of the Winding -Up have been
completed; and
G. To facilitate the completion of the Winding -Up and the dissolution of IROC, it is
desirable that IROC be released and discharged from all of its liabilities and obligations,
including, without limitation, any and all liabilities and obligations of IROC under or
otherwise in respect of the Primary Project Agreements.
NOW THEREFORE, in consideration of the premises and other good and valuable consideration
(the receipt and sufficiency of which are hereby acknowledged by each party hereto), the parties
hereto hereby covenant and agree as follows:
(i)
1. The Agency hereby:
(a) for purposes of any covenant or representation which would be breached,
restriction which would be violated, or default which would occur, pursuant to the
any of the Primary Project Agreements or any other agreement executed by any
party in connection with any of the Primary Project Agreements (collectively, the
"Project Documents") as a result of the Winding -Up and the consequences
thereof as described in Recital F hereof, irrevocably consents to the Winding -Up
and such consequences and irrevocably waives any rights it may have as a result
of the Winding -Up or such consequences; and
acknowledges, confirms and agrees that the Winding -Up and the consequences
thereof as described in Recital F hereof will not result in any breach of or default
under any of the Primary Project Agreements or any Project Document, nor result
in the termination of any of the Primary Project Agreements or any Project
Document, or otherwise affect the terms of any of the Primary Project
Agreements or any Project Document and, for greater certainty, the Agency
hereby acknowledges, confirms and agrees that it will continue to deal with
RVLP and with Intrawest, as the successor to IROC, on the terms and conditions
contained in the Primary Project Agreements.
(b)
2. RVLP, IROC and Intrawest hereby acknowledge, confirm and agree that, except as set
forth herein, all rights and interests of the Agency created by or arising from the Primary
Project Agreements and any and all Project Documents will survive the Winding -Up and
dissolution of IROC and will not be discharged or otherwise prejudiced as a result of the
Winding -Up and dissolution of IROC.
3. Intrawest hereby acknowledges, confirms and agrees that effective upon and concurrently
with the commencement of the Winding -Up and the distribution of the property of IROC
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to Intrawest as part thereof, Intrawest will assume and be bound by and liable for any and
all liabilities and obligations of IROC to the Agency under the Primary Project
Agreements and any and all Project Documents.
4. The Agency hereby acknowledges, confirms and agrees that effective upon Intrawest
assuming and becoming bound by and liable for any and all liabilities and obligations of
IROC under the Primary Project Agreements and any and all Project Documents in the
course of the Winding -Up, IROC will be released and discharged from any and all
liabilities and obligations to the Agency under or otherwise in respect of the Primary
Project Agreements and any and all Project Documents.
5. This Agreement will be read and construed together with the Primary Project Agreements
and any and all Project Documents and, subject to the provisions hereof, the terms,
covenants and conditions of each of the Primary Project Agreements and any and all
Project Documents will continue to be in full force and effect with only such changes as
may be necessary or desirable to reflect the Winding -Up and the consequences thereof as
described herein.
6. RVLP and Intrawest will at any time and from time to time at the request of the Agency
execute and deliver to the Agency such further documents and do all such other acts and
things as the Agency may reasonably request in order to give effect to the intent of this
Agreement.
7. No party hereto may assign its rights, liabilities or obligations hereunder except in
accordance with the terms of, and in conjunction with the assignment of the rights,
liabilities and obligations of such party under, the Primary Project Agreements and any
Project Documents.
8. This Agreement will enure to the benefit of and be binding upon the parties hereto and
their respective successors and permitted assigns.
9. This Agreement will be governed by and construed in accordance with the laws of the
State of California.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day
and year first above written.
PALM DESERT REDEVELOPMENT AGENCY,
a public body, corporate and politic
By:
Authorized Signatory
ATTEST:
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RESORT VENTURES, L.P., by its general partner,
INTRAWEST VENTURES, INC.
By:
Authorized Signatory
INTRAWEST RESORT OWNERSHIP CORPORATION
By:
Authorized Signatory
INTRAWEST CORPORATION
By:
Authorized Signatory
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