HomeMy WebLinkAboutC31260 Financial Assistance N & D Restaurants, Inc. - Red LobsterCITY OF PALM DESERT
STAFF REPORT
REQUEST: CONSIDERATION OF FINANCIAL ASSISTANCE TO N & D
RESTAURANTS, INC. FOR RED LOBSTER LOCATED AT 72-291
HIGHWAY 111
SUBMITTED BY: Ruth Ann Moore, Economic Development Manager
DATE: October 13, 2011
CONTENTS: Loan Agreement
Site Plan
Recommendation
By Minute Motion:
1. Approve a loan agreement as to form with N & D Restaurants, Inc. in the
amount not to exceed $40,000 to finance hard and soft costs of drainage
improvements at 72-291 Highway111 and authorize the City Attorney to make
non -substantive changes; and (Contract No. C31260)
2. Appropriate $40,000 from Account No. 400-4800-454-3875 Facade
Enhancement Program; and
3. Authorize the City Manager to execute said agreement.
Funds are available in Account No. 400-4800-454-3875.
Executive Summary
N & D Restaurants, Inc, owners of the property located at 72-291 Highway 111, has
approvals to build a Red Lobster restaurant. During the plan check process the owners
learned they were subject to recently updated requirements for the Storm Water
Management Plan to provide storm water retention not only for their site but for water
flowing onto their site from adjoining properties (see site plan). This requires
deconstruction of the majority of the existing parking improvements to reconstruct and
include required water retention improvements of which 80 percent is due to water
runoff from adjacent properties. The cost for the entire construction for Red Lobster and
the adjacent properties drainage is estimated at $48,000 plus design costs. Approval of
the request will allow for a loan to cover 80 percent of the drainage costs in which the
Staff Report
Financial Assistance for Red Lobster
October 13, 2011
Page 2 of 3
loan amount would be abated by sales tax revenue received by the City. Denial of the
request will not allow City assistance.
Background
At the City Council meeting of September 29, 2011, Council continued a Facade
Enhancement Program consideration and directed staff to look for an alternative funding
process. Staff reviewed other Coachella Valley cities' loan programs to find examples of
city participation with merchants encountering regulations from agencies and authorities
beyond city oversight that are burdensome to opening and/or operating businesses. Of
particular interest is a loan program at the City of Rancho Mirage. In this instance, the
Coachella Valley Water District (CVWD) determined several restaurants to have
previously paid insufficient sewer capacity fees. This would require restaurants to either
increase fees to CVWD or reduce seating capacity within the buildings. A forgivable
loan program was introduced to cover the cost of the fees that would be paid back
through sales tax revenue.
Palm Desert could introduce a similar program to mitigate the additional burden related
to in -fill locations that are required by the Storm Water Management Plan to retain run-
off water from other areas contiguous to the site. This would assist in attracting
additional business to the City and generate sales tax revenue for the City.
Red Lobster would not be the first restaurant to be assisted by the City. Eight
restaurants have been assisted by the Facade Enhancement Program for various
improvements directly and indirectly such as parking lots, lighting, landscaping, and the
overall fagade of their respective structures.
In the case of Red Lobster, staff has crafted a loan agreement with the following
parameters for your review.
• A loan in the amount not to exceed $40,000 to finance 80 percent of the hard and
soft costs of the drainage improvements attributable to the storm water runoff
from other nearby properties.
• The loan shall be evidenced by and repaid pursuant to a promissory note which
shall provide for abatement of the amount due under the note for sales tax
revenues actually received by the City.
• Further, the business must operate continuously for five years (operating
covenant). Should the business not operate for the five years, the City may
declare the entire balance of principal and interest under the note without regard
to any abatement for sales tax receipts, immediately due and payable.
• The loan would be funded after the issuance of a Certificate of Occupancy for the
business and invoices, or other evidence satisfactory to the City showing
reimbursable hard and soft costs of the Borrower have been provided.
G:\rda\Ruth Ann Moorelword data\STAFF REPORTS\Red Lobster Funding.doc
Staff Report
Financial Assistance for Red Lobster
October 13, 2011
Page 3 of 3
Fiscal Analysis
Estimates for sales tax are very conservatively based at $45,000 per year for a total of
$225,000 in sales tax revenue for five years.
Submitted By:
u h Moor , E nomic ft6velopment Manager
Department Head:
' CITY COUNCILi'ION
APPROVED DFNTF,D
Usti McCarthy, ACM f development RECEIVED OTHER.
Gibson, Director of Finance
J9K0 M. Wohlmuth, City Manager
MEETI G DA C ���
AYES:
NOES:
ABSENT:
ABSTAIN:
VERIFIED BY: r
Original on File with City Jerk's Office
By Minute Motion, approved a $40,000
contribution to the project for the
required infrastructure improvements
to be expended from the General Fund.
4-1 (Finerty NO)
G:\rda\Ruth Ann Moore\word data\STAFF REPORTS\Red Lobster Funding.doc
Contract No. C31260
LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement") is entered into as of October _, 2011, by and
between THE CITY OF PALM DESERT, a California municipal corporation, (the "City"), and
N&D RESTAURANTS, INC., a Florida corporation (`Borrower").
RECITALS
A. Borrower is developing a building and related improvements on a site within the
City located at 27-291 Highway 111, on the south west corner of Highway 111 and Fred Waring
Drive (the "Property") as a N&D RESTAURANTS branded restaurant (the "Project") and in
connection with developing the Project, a Water Quality Management Plan has been prepared
requiring Borrower to accommodate storm water run off from the Property and other nearby
properties by constructing storm water retention facilities (the "Drainage Improvements").
B. The City wishes to reimburse Borrower, in the form of a loan, for the percentage
of the hard and soft costs related to the construction of the Drainage Improvements directly
attributable to nearby properties - and not to the Property, as defined above - in an amount not to
exceed FORTY Thousand Dollars ($40,000.00) for the purpose of causing the improvement of
property within the City, implementing the Storm Water Management Plan, attracting business to
the City and generating sales taxes revenues for the City.
C. Borrower wishes to construct the Project, construct the Drainage Improvements
required by the Storm Water Management Plan, receive the financial assistance provided for in
this Loan Agreement and operate the Project continuously as a N&D RESTAURANTS branded
restaurant (the "Business") for a period of no less than five years subject to the other covenants
and conditions contained in this Loan Agreement.
AGREEMENTS
NOW, THEREFORE, THE CITY AND BORROWER AGREE AS FOLLOWS:
Section 1. Loan Commitment.
A. In consideration for the Borrower constructing and installing the Drainage
Improvements on the Property and the other conditions and covenants provided
for herein, the City shall lend Borrower and amount not to exceed FORTY
THOUSAND DOLLARS ($40,000.00) (the "Loan") to finance hard and soft
costs of the Drainage Improvements attributable to the storm water runoff from
other properties nearby the Property - as distinguished from the Property itself -
subject to the terms and conditions hereinafter set forth. The percentage of the
hard and soft costs attributable to nearby properties - and not the Property - shall
be a percentage determined by comparing the storm water runoff from the
Property, as shown in the hydrology study for the Project, compared with the
Contract No. C31260
runoff from nearby properties, as shown in the hydrology study for the Project
and determined by City.
B. The Loan shall be evidenced by and repaid pursuant to a promissory note (the
"Note") in substantially the form of Exhibit A, attached hereto and incorporated
herein by reference, which shall provide for abatement of the amount due under
the Note for sales tax revenues actually received by the City due to the Business
provided further that the Business is operated continuously for five years.
C. The City shall disburse to Borrower the proceeds of the Loan upon satisfaction of
all conditions precedent set forth in Section 4, below, and pursuant to the
provisions of Section 5, below. The Loan proceeds shall be disbursed to the
Borrower in one or more disbursements to pay for costs incurred by the Borrower
for the Drainage Improvements. The City shall have the right to approve the
Loan disbursement to the Borrower based upon evidence submitted to the City of
such costs.
Section 2. Restrictions on Borrower's Use of Proceeds. Borrower covenants that it
shall use the proceeds of the Loan solely to reimburse itself for the cost of financing the
Drainage Improvements pursuant to valid, bona fide contracts made by Borrower in the ordinary
course of its business. Borrower shall not use the Loan proceeds, or permit them to be used, for
any purpose other than as set forth in this Section 2. The City shall not be responsible for any
costs or charges incurred in the construction and installation of the Project or the Drainage
Improvements, except for the Loan provided for hereunder.
Section 3. Performance of Improvement Obligations. Borrower shall commence and
diligently proceed to take all actions necessary, including obtaining all permits and approvals
necessary, to undertake and complete the Drainage Improvements and the Project.
Section 4. Conditions to Funding. As a condition precedent and prior to delivering
the proceeds of the Loan to Borrower, Borrower shall submit to the City or obtain the following,
all of which shall be subject to the approval of the City:
A. The Promissory Note, fully executed by Borrower (Exhibit A).
B. Issuance of a Certificate of Occupancy for the Project.
C. Invoices, or other evidence satisfactory to the City, showing reimbursable hard
and soft costs of Borrower as provided in section I.A.
D. Mechanic's lien waivers and releases from contractors or subcontractors that
constructed and installed the Drainage Improvements, in a form satisfactory to the
City.
If the Borrower fails to satisfactorily complete all of the conditions precedent set forth
above by January 1, 2013, then the City, in its sole discretion, may terminate this Agreement by
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Contract No. C31260
delivering written notice of such termination to the Borrower. Following such termination,
neither party shall have any further rights, duties or obligations hereunder, and the City shall
have no obligation to fund any portion of the Loan provided for hereunder.
Section 5. Loan Closing. The City shall deliver the proceeds of the Loan to the
Borrower upon satisfaction of all the conditions set forth in Section 4, above.
Section 6. Five Year Operating Covenant. Borrower shall operate the Business as a
N&D RESTAURANTS branded restaurant on a full time, permanent and continuous basis at all
times from within 30 days from the loan closing until a date that is five years after said date. A
default of this condition and covenant shall be considered a material default of this Loan
Agreement and the Promissory Note, attached hereto as Exhibit "A", subject to Borrower's cure
rights expressly provided for in the Promissory Note, in such event City may declare the entire
balance of principal and interest under the Note, without regard to any abatement for sales tax
receipts, immediately due and payable.
Section 7. Insurance.
A. Worker's Compensation.
Borrower, certifies that none of its employees will perform services with respect
to the construction or installation of the Drainage Improvements that are the
subject of this Agreement, and, accordingly, that no Worker's Compensation
Insurance need be maintained pursuant to applicable provisions of California law.
Borrower hereby agrees to indemnify, assume all responsibility for and hold the
City, its council members, officers and employees, harmless from all demands,
claims, actions and damages, of whatever type or nature, including all costs of
defense and attorneys' fees, to any person or property arising out of or caused by
any alleged failure of Borrower to provide such Worker's Compensation
Insurance. However, Borrower shall require all contractors and subcontractors
with employees to carry and maintain full Worker's Compensation Insurance and
Employer's Liability with limits as required by California law with an insurance
carrier satisfactory to the City. The policy shall provide that no cancellation,
major change or expiration shall become effective or occur until at least ten (10)
days after receipt of written notice by the City.
B. Liability.
1. Borrower, at its own cost and expense, shall maintain a commercial
general liability policy written on an occurrence basis with a combined
single limit of ONE MILLION DOLLARS ($1,000,000). The City, the
City Council, and their officers and employees, shall be named as
additional insured. The policy shall cover the Property during the term of
construction of the Project. Borrower shall require all contractors and
subcontractors with employees to carry and maintain liability insurance in
the same amount.
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Contract No. C31260
2 All insurance shall be with insurers and under forms of policies
satisfactory in all respect to the City and shall provide that notice must be
given to the City at least thirty (30) days prior to cancellation or material
change. The policies shall stipulate that this insurance will operate as
primary insurance and that no other insurance effected by the City will be
called upon to contribute to a loss suffered by Borrower hereunder.
3 Borrower agrees to furnish any certificates of insurance evidencing the
above -described policies as requested by the City. Such certificates must
be returned to City and approved by the City before any payments will be
made under this Agreement. Upon notification of receipt by the City a
notice of cancellation or major change in coverage, Borrower shall file
with the City a certified copy of the required new or renewal policy and
certificates for such policy.
Section 8. Indemnification. Borrower shall defend, assume all responsibility for and
hold the City, its council members, officers and employees, harmless from all demands, claims,
actions and damages, of whatever type or nature, including all costs of defense and attorneys'
fees, to any person or property arising out of or caused by any of Borrower's activities under or
related to this Agreement, whether such activities or performance thereof by Borrower or anyone
directly or indirectly employed or contracted with by Borrower and whether such damage shall
accrue or be discovered before or after completion of the Drainage Improvements and the
Project.
Section 9. Maintenance of Records.
A. Maintenance of Records.
Borrower shall maintain all necessary books and records, including property,
personal and financial records, in accordance with requirements prescribed by
City with respect to all matters covered by this Agreement. Such records shall be
maintained for a period of three (3) years after receipt of the final payment under
this Agreement.
B. Documentation on Expenditures.
Borrower shall document all expenditures under this Agreement with properly
executed payroll, time records, invoices, contracts, vouchers or other official
documentation evidencing in appropriate detail the nature and propriety of the
charges. All checks, payroll, invoices, contracts, vouchers, orders or other
accounting documents pertaining in whole or in part to this Agreement shall be
clearly identified and readily accessible.
in
Contract No. C31260
C. Access by City.
Borrower, at such time and in such forms as City may require, shall furnish to
City statements, records, reports, data and information pertaining to matter
covered by this Agreement. Upon request for examination by City, Borrower at
any time during normal business hours, shall make available all of its records with
respect to all matters covered by this Agreement. Borrower shall permit the City
to audit, examine and make excerpts or transcripts from these records.
Section 10. Nondiscrimination. Borrower, for itself and its successors and assigns,
agrees that in the performance of the Project, it will not discriminate, and will not allow any
discrimination against any employee or applicant for employment because of race, color, creed,
religion, sex, marital status, ancestry or national origin. Borrower covenants by and for itself and
any successors in interest that 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, ancestry
or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
Property.
Section 1 1 _ Default_
A. Defaults.
Any one or all of the following events shall constitute a default by Borrower:
1. Any material misleading statement, misrepresentation or warranty of
Borrower herein or in any other writing at any time furnished by Borrower
to City;
2. Nonperformance when due of any of the obligations described herein, or
failure to perform any obligation or covenant contained herein;
3. The filing by or against Borrower of a petition for relief under the
Bankruptcy Reform Act of 1978 or any bankruptcy or debtor relief law;
4. A general assignment by Borrower for the benefit of creditors or the
appointment of any receiver or trustee of all or any portion of the assets of
Borrower;
5. A determination by City based upon evidence that there exists, or the
actual existence of, any deterioration or impairment in the ability of
Borrower to meet Borrower's obligations to the City under this Agreement
or the Note evidencing the Loan;
6. The filing of any involuntary liens, levy, attachment, executions, tax
assessments or similar processes against Borrower's interest in the
Property not released within twenty (20) days;
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Contract No. C31260
7. The transfer or assignment of this Loan Agreement or the Note without
approval by the City;
8. Borrower fails to use the Loan proceeds for any purpose other the
purposes set forth in Section 2 of this Agreement.
B. Remedies.
Upon the occurrence of a default, the City, at its option, may declare this
Agreement to be in default and, in such event, the City shall have all of the rights
and remedies prescribed in the Note and at law or in equity. Following an event
of default, the City shall have no further obligation to disburse all or any portion
of the Loan.
C. No Liabilitv of Citv Member.
No city council member, official or employee of the City shall be personally
liable to Borrower, or any successor in interest, in the event of any default or
breach by City under this Agreement or for any amount which may become due to
Borrower or any successor or on any obligations under the terms of this
Agreement.
Section 12. Miscellaneous Provisions.
A. Transfer or Assignment.
As long as any balance of the Note is remaining to be paid, the Borrower shall not
transfer or assign this Loan Agreement, the Note or its interest in the Property or
its interest in any of the Drainage Improvements without prior written approval by
the City. Approval of any such transfer or assignment shall be at the sole
discretion of the City.
B. Interest of Members of City.
No member of the city council of City and no other officer, employee or agent of
the City who exercises any functions or responsibilities in connection with the
carrying out of the City's work shall have any personal interest, direct or indirect,
in this Agreement.
C. Charges Incurred Under Agreement.
All advances, charges, costs and expenses incurred or paid by the City in
exercising any rights, power or remedy conferred by this Agreement or in the
enforcement thereof, shall be paid to the City by Borrower within ten (10) days
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Contract No. C31260
and without demand, with interest thereon at the rate of ten percent (10%) per
annum.
D. Compliance With Governmental Regulations.
Borrower shall, at its sole cost and expense, comply with all applicable municipal,
county, state and federal laws, rules, regulations and ordinances now in force, or
which may hereafter be in force, pertaining to any and all activities contemplated
under this Agreement, including, but not limited to, issuance of building and use
permits and compliance with all federal and state labor laws.
E. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws
of the State of California, to the jurisdiction of which the parties hereto submit.
F. Time of the Essence.
Time is of the essence of each and every provision of this agreement.
G. Notices.
Notices or other communications given under this Agreement shall be in writing
and shall be served personally or transmitted by first class mail, postage prepaid.
Notices shall be deemed received either at the time of actual receipt or, if mailed
in accordance herewith, on the third (3rd) business day after mailing, whichever
occurs first. Notices shall be directed to the parties at the following addresses or
at such other addresses as the parties may indicate by notice:
City: The City of Palm Desert
Palm Desert Civic Center
73 -5 10 Fred Waring Drive
Palm Desert, CA 92260
Attention: City Manager
Borrower: N&D RESTAURANTS, Inc.
Attention:
H. Headings.
The titles and headings of the various sections of this Agreement are intended
solely for reference and are not intended to explain, modify or place any
interpretation upon any provision of this Agreement.
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Contract No. C31260
I. Severability.
Whenever possible, each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision of
this Agreement shall be prohibited or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such or the remaining provisions of this Agreement.
J. Waiver.
No waiver of any provision of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar, nor shall any
waiver constitute a continuing waiver. No waiver shall be binding unless
executing in writing by the party making the waiver.
K. Number and Gender.
As used in this Agreement, the masculine, feminine or neuter gender, and the
singular or plural number, shall each include the others whenever the context so
indicates or requires.
L. Further Assurances.
The parties shall execute, acknowledge, file or record such other instruments and
statements and shall take such additional action as may be necessary to carry out
the purpose and intent of this Agreement.
M. BindingEffect.
ffect.
This Agreement shall be binding upon and inure to the benefit of the parties'
respective heirs, legal representatives, successors and assigns.
N. Entire Agreement.
This Agreement and Exhibits A, B, and C which are incorporated herein,
together constitute the entire agreement between the parties and supersede all
prior or contemporaneous agreements, representations, warranties and
understandings of the parties concerning the subject matter contained herein,
written or oral. No change, modification, addendum or amendment to any
provision of this Agreement shall be valid unless executed in writing by each
party hereto.
O. Attorneys' Fees.
In the event of any litigation arising out of this Agreement, the prevailing party in
such action, or the nondismissing party where the dismissal occurs other than by
Contract No. C31260
reason of a settlement, shall be entitled to recover its reasonable costs and
expenses, including, without limitation, reasonable attorneys' fees and costs paid
or incurred in good faith. The "prevailing party," for purposes of this Agreement,
shall be deemed to be that party who obtains substantially the result sought,
whether by settlement, dismissal or judgment.
P. Amendment.
This Agreement may be amended only by a written instrument signed by both
City and the Borrower.
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Contract No. C31260
SIGNATURE PAGE TO
LOAN AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this instrument as of the day
and year first above written.
Approved as to form:
City Attorney
CITY:
2011 THE CITY OF PALM DESERT, a
California municipal corporation
WE
Title: City Manager
BORROWER:
2011 N&D
By:
Its:
10
RESTAURANTS, INC.,
corporation
a
Contract No. C31260
EXHIBIT A
PROMISSORY NOTE
$40,000.00
For value received, N&D RESTAURANTS, INC., a
(`Borrower") located at
, 2011
Palm Desert, California
corporation
promises to pay the CITY OF
PALM DESERT, a municipal corporation (the "City"), at 73 -5 10 Fred Waring Drive, Palm
Desert, CA 92260, or such other place as the City may from time to time designate in writing,
the principal sum of FORTY THOUSAND DOLLARS, ($40,000.00) or as much as has been
advanced to Borrower, together with interest from the date hereof, at an interest rate of six
percent (6%) per annum, until fully paid, in lawful money of the United States of America,
subject to the terms, conditions and limitations contained in this Note. Interest shall be
computed based on an actual day year and the actual number of days elapsed. Interest shall
commence on amounts disbursed hereunder from the date of disbursement.
1. This Note is being given in consideration of Borrower's obligations under that
certain Loan Agreement by and between the City and Borrower dated , 2011 (the
"Loan Agreement"). Pursuant to the Loan Agreement, the City has provided the Loan to
Borrower for the purpose of payment of costs for construction and installation of certain
Drainage Improvements to be completed on the Property (as defined in the Loan Agreement).
This Note is to be construed in conjunction with the Loan Agreement.
.2. So long as Borrower is not in default under the Loan Agreement or this Note, and
subject to the limitations in this Note, the principal and accrued interest shall be due and payable
in one installment on the third anniversary of the date of this Note. The principal and interest
due under this Note shall be abated, dollar for dollar, by the amount of sales tax revenue received
by City generated directly by the Business, as determined by City. This Note shall also be
subject to the condition that if the Property is not operated continuously as a N&D
RESTAURANTS branded restaurant for a period of five years from the date of this Note and the
Loan Agreement, for any reason, the entire amount of principal and interest that then would have
been due under this Note shall be due and payable immediately, without reference to, or
application of, the abatement for sales tax revenues in the preceding sentence. For the avoidance
of any doubt, if the five year operating covenant is not met at any time, the entire amount of
principal and accrued interest shall be due and payable in one installment, immediately, and any
abatement of the principal and interest previously accrued and/or applied shall be rescinded and
of no further force or effect.
3. Any notice to Borrower provided for in this Note shall be given by personal
delivery or by mailing such notice by first class or certified mail, return receipt requested,
Contract No. C31260
addressed to Borrower at the address stated above, or to such other address Borrower may
designate by written notice to the City. Any notice to the City shall be given by personal
delivery or by mailing such notice by first class or certified mail, return receipt requested, to the
City at the address stated above, or at such other address as may have been designated by written
notice to Borrower. Mailed notices shall be deemed delivered and received three (3) days after
deposit in accordance with this provision in the United States mail.
4. The occurrence of any of the following shall constitute an event of default under
this Note: (a) Borrower fails to pay any amount due hereunder within ten (10) days of its due
date; or (b) any default by Borrower under the Loan Agreement. Upon the occurrence of any
event of default, or at any time thereafter, at the option of the City, the entire unpaid principal
and interest owing on this Note shall become immediately due and payable. This option may be
exercised at any time following any such event, and the acceptance of one or more installments
thereafter shall not constitute a waiver of City's option. City's failure to exercise such option
shall not constitute a waiver of such option with respect to any subsequent event. City's failure
in the exercise of any other right or remedy hereunder or under any agreement which secures the
indebtedness related thereto shall not affect any right or remedy and no single or partial exercise
of any such right or remedy shall preclude any further exercise thereof.
5. At all times when Borrower is in default hereunder by reason of Borrower's
failure to pay amounts due under this Note thirty (30) days after the applicable due date, the
interest rate on the sums as to which Borrower is in default (including principal, if Borrower has
elected to declare it immediately due and payable), shall be the lower of the highest rate then
allowed by law or six percent (6%) over the prime interest rate announced by Bank or America,
as of the date of the default. The parties hereto agree that the additional charges set forth in this
Section represent reasonable sums considering all of the circumstances existing on the date of
this Note and represent fair and reasonable estimates of the costs and damages that City will
incur by reason of the late payment. The parties hereto further agree that proof of actual
damages would be costly or inconvenient. Acceptance of any of the additional charges herein
shall not constitute a waiver of the default with respect to the overdue amount, and shall not
prevent City from exercising any of the other rights and remedies available to City. The
foregoing shall not be construed as obligating the City to accept any payment after its due date.
6. Borrower agrees to pay the following costs, expenses and attorneys' fees paid or
incurred by the City or adjudged by a Court: (a) reasonable costs of collection, costs and
expenses, and attorneys' fees paid or incurred in connection with the collection or enforcement
of this Note or any part of it or of any covenant of this Note, whether or not suit is filed; (b) costs
of suit and such sum as the Court may adjudge as attorneys' fees in any action to enforce
payment of this Note or any part of it; and (c) costs of suit and such sum as the Court may
adjudge as attorneys' fees in any other litigation or controversy connected with this Note,
including, but not limited to actions for declaratory relief that the City is required to prosecute
and defend and actions for relief based on rescission, or actions to cancel this Note that the City
is required to defend.
7. This Note is nonnegotiable and not transferable by the Borrower. The City, at its
sole option, may negotiate, transfer or assign this Note.
Contract No. C31260
8. Borrower and all other persons liable or to become liable for repayment of the
Loan evidenced by this Note shall be jointly and severally liable for such repayment. Borrower
and any endorsers hereof and all others who may become liable for all or any part of this
obligation, severally waive presentment for payment, demand and protest and notice of protest,
and of dishonor and nonpayment of this Note, and expressly consent to any extension of the time
of payment hereof or of any installment hereof, to the release of any party liable for this
obligation, and any such extension or release may be made without notice to any of said parties
and without any way affecting or discharging this liability.
9. The Borrower shall have the right to prepay, at any time and from time to time, all
or any portion of the amounts owing under this Note without any premium or penalty.
10. This Note and all of the covenants, promises and agreements contained in it shall
be binding upon and inure to the benefit of the respective legal and personal representatives,
devises, heirs, successors and assigns of the City and Borrower.
11. This Note shall be construed in accordance with and be governed by the laws of
the State of California.
12. Borrower shall indemnify, defend, protect and hold the City harmless from and
against any and all loss, damage, liability, action, cause of action, cost or expense, including,
without limitation, reasonable attorneys fees and expenses incurred by the City, arising as a
result of any (i) fraud or material misrepresentation by the Borrower under or in connection with
the Loan Agreement; or (ii) intentional bad . In the event of any breach of such obligations, the
City shall have the right to proceed directly against the Borrower to recover any and all losses,
damages, liability, costs and expenses (including without limitation, reasonable attorneys fees
and expenses) and may bring any action and institute any proceeding to obtain a deficiency
judgment in or following foreclosure for any and all such losses, damages, liabilities, costs and
expenses resulting from such breach.
13 If any provision of this Note is determined by a court of competent jurisdiction to
be void or unenforceable, such determination shall not affect any other provision of this
instrument, and all other provisions hereof shall remain valid and in full force and effect.
14. No delay in demanding or failure to demand performance hereunder shall
constitute a waiver by the City of its right to subsequently demand such performance or to
exercise any remedies for any default hereunder. Further, in order to be effective, any waiver of
any of the City's rights and remedies hereunder shall be expressed in a writing signed by a duly
appointed representative of the City. Further, waiver by the City of any right hereunder shall not
constitute a waiver of any other right, including, but not limited to, the right to exercise any and
all remedies for a different or subsequent event of default hereunder.
15. This Note shall bind Borrower and Borrower's successors and assigns and the
benefit hereof shall inure to City and City's successors and assigns.
Contract No. C31260
16. Borrower agrees to indemnify City and to hold City and City's successors and
assigns harmless from and against any and all claims, demands, costs, liabilities and obligations
of any kind or nature arising from any default hereunder, including, without limitation, all costs
of collection, including reasonable attorneys' and expert witness fees and all costs of suit, in the
event the principal amount of this Note or any other amount due hereunder is not paid when due.
17. Time is of the essence of each and every provision of this Note.
Executed at Palm Desert, California, on this day of , 2011.
BORROWER:
N&D RESTAURANTS, INC., a
corporation
IM
Title:
n
Klassen, Rachelle
From: Wohlmuth, John
Sent: Wednesday, October 05, 2011 11:56 AM
To: Michelson, Wilma; Klassen, Rachelle
Subject: FW: Contact Us Submission
Please provide to the City Council and place in the Red Lobster agenda item.
Thanks,
John
-----Original Message -----
From: Hermann, David
Sent: Wednesday, October 05, 2011 9:53 AM
To: Wohlmuth, John
Cc: Prusinowski, Karen
Subject: FW: Contact Us Submission
Good morning John,
The message below from a resident, Mr. James Lamb, is addressed to the City Council. I am
sharing it with you so that you can share it with the Council as appropriate. I have already
responded to Mr. Lamb regarding his concerns with road construction, apologized for the
inconvenience he has experienced, and assured him that the City is doing everything it can to
advance the construction projects as quickly as possible while ensuring public safety and
high quality workmanship.
Please let me know if I can be of any further assistance.
David
David Hermann
Public Information Officer
City of Palm Desert
760-776-6380
-----Original Message -----
From: info(@ci.palm-desert.ca.us jmailto:info(@ci.palm-desert.ca.usl
Sent: Tuesday, October 04, 2011 6:24 PM
To: InformationMail
Subject: Contact Us Submission
Submission information
Submitter DB ID : 1652
Submitter's language : Default language
IP address : 71.121.55.178
Time to take the survey 23 min. , 13 sec.
Submission recorded on 10/4/2011 6:24:16 PM
Survey answers
-----------------------------------------
Your Contact Information
First name: * James
1
Last name: *
Lamb
E-mail Address:
* punchout123@aol.com
Address line 1
73482 Terraza Dr.
Address line 2
Not answered
City
Palm Desert
State
CA
Zip code: *
92260
Phone number
760 578-3532
I Am a:
Palm Desert Business Owner [x]
Palm Desert Resident [x]
Comments:
To City Council,
I an opposed to giving ANY money to The Red Lobster or any other business in this City. I
have been here 43 years and in business 30 years. the City has never been asked for one dime.
Please do not spend my tax dollars on such business ventures.
As for your apparent inability to control the road work planning and hiring of qualifed
contractors , shame on you. I will accept the need for road repairs along with all the minor
detours and time spent getting around them. BUT, does any have a brain cell working putting
all the repairs in motion at the same time ? Further, who is related to Colley Construction?
It appears that they are well connected to someone as evidenced by the bottched job at Cook
and Hovely. If , they were the low bidder ; perhaps the city might apply a simple term to the
selection process : "QUALIFIED CONTRACTOR". I watch this job each day, while stuck in
traffic, and do see much action. In order to finish a job the contractor needs to be present
at least 3 days out of a week. All four corners are torn up , no work is being done at three
of these and a little work at the fourth. I am done bitching. BUT, please look into this
Coolley job mess.
Thank you
Jim Lamb
2
DARDEN.
Red .(;Uat2t • 011.o �.,id�Clt'�1 • 1 onul {tut?. > cdkt)iAiSc'� • 1f1P t dl>i..,4i t.,lih, ■ l�'&" lld BlE'v!c •
VIA OVERNIGHT DELIVERY
October 10, 2011
John M. Wohlmuth
City of Palm Desert
73-510 Waring Drive
Palm Desert, CA 92260
Re: Proposed Red Lobster
Palm Desert, Ca.
Dear Mr. Wohlmuth:
It was a pleasure meeting you last week to discuss the Red Lobster project in Palm
Desert. The proposed Red Lobster as originally contemplated, was to be a curb -in
construction with site improvements at the building foundation and construction of a new
Red Lobster building. No additional improvements were contemplated, since the
existing site is currently afforded an operating parking lot with adequate parking for all
current uses including a proposed Red Lobster. City staff , as part of its plan review has
requested that improvements be made to the existing parking area for storm water
improvements to meet new state code requirements.
In discussions with Staff and members of the economic development team, we have
asked for relief from these proposed storm water requirements as they exceed our
scope of work and push proposed project costs well beyond our approved budget. As a
follow up to these discussions, please accept this letter as a formal request on the part
of Darden to pursue any assistance available through growth incentive funds, in aid of
these additional construction costs for this project.
0
Thank you for your consideration. Please let me know if you have any questions.=�
Sincerely /,
o mmrel
/hn Keen N > c
Site Development Manager a" "'
1000 garden Center Drive ■ Orlando, Ft. 32837 • P.O. Box 69501 1 • Orlando, FL 32869-5011 • 407.245.4000 ■ darden.com