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Home My WebLink AboutSR - RTFY R19820A - AMERICAN INVESTMNT PALMS TO PINESContract No. R19820A PALM DESERT REDEVELOPMENT AGENCY STAFF REPORT REQUEST: RATIFICATION OF REVISION TO DATES ESTABLISHED THROUGH AGENCY BOARD ACTION IN THE THIRD AMENDMENT TO OWNER PARTICIPATION AGREEMENT SUBMITTED BY: CATHERINE WALKER, SENIOR MANAGEMENT ANALYST DATE: DECEMBER 14, 2006 CONTENTS: REVISED THIRD AMENDMENT TO OWNER PARTICIPATION AGREEMENT Recommendation: By Minute Motion, that the Agency Board: 1. Authorize ratification of revision to dates established through Agency action in the Third Amendment to the Owner Participation Agreement between the Agency and American Investment Palms to Pines East LLC; and 2. Authorize the Chairman to execute the same. Discussion: On November 16, 2006, the Agency Board approved the Third Amendment to the Owner Participation Agreement with American Investment Palms to Pines East LLC. The Owner Participation Agreement was intended to provide assistance to American Investment Palms to Pines East LLC in the renovation of the Palms to Pines East Shopping Center. This ratification clarifies discrepancies that existed in the approved dates for construction. The attached revised Third Amendment reflects the following clarifications regarding Phase III construction (Phase III encompasses all fagade work to be done to the buildings facing El Paseo): a commencement date of May 15, 2007, instead of May 1, 2006 and a completion date of October 30, 2007, instead of June 1, G \RDA\Cathy Walker\Word Data\STAFF REPORTS\Staff for revisions to Palms to Pines East.doc Staff Report Ratification of Revision to Dates in the Third Amendment to OPA Page 2 of 2 December 14, 2006 2007. The only changes to the approved Third Amendment are the errors in the stated timelines. Agency legal counsel believes this to be a substantive change to the agreement and, therefore, ratification of this clarification is necessary. Submitted by: Catherine Walker Senior Management Analyst lopment 'ector Department Head: `—Cfave Yri Directo edevelopment/Housing ►° Paul,. Gibson,' or of Finance BY RDA 1 1- ON 12_I4-Q(,o VERIFIED BY--,/ (-a. U Original on file with City Clerk's Office G RDA Cathy Walker Word Data STAFF REPORTS Staff for revisions to Palms to Pines East.doc THIRD AMENDMENT TO OWNER PARTICIPATION AGREEMENT THIS THIRD AMENDMENT TO OWNER PARTICIPATION AGREEMENT ("Amendment") dated as of November 16, 2006 ("Effective Date"), is entered into by and between the PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency") and AMERICAN INVESTMENT PALMS TO PINES EAST, LLC, a California limited liability company ("Developer"). RECITALS A. The Agency and Developer have previously entered into that certain Owner Participation Agreement, dated as of March 25, 2004, as amended by that certain letter agreement dated July 22, 2004, and that certain Second Amendment to Owner Participation Agreement dated October 27, 2005, between the Agency and Developer (as so amended, the "OPA"), which affects that certain property located in the City of Palm Desert, County of Riverside, State of California, more particularly described on Exhibit "A" attached to the OPA. B. The Agency and Developer wish to amend and modify the OPA as hereinafter set forth in this Amendment. AGREEMENT NOW, THEREFORE, in consideration of the terms of this Amendment and for other valuable consideration, the receipt of which is hereby acknowledged, Agency and Developer agree as follows: 1. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the OPA. 2. Section 2.2.3 of the OPA is hereby deleted in its entirety and the following is substituted therefor in its place: "2.2.3 Schedule of Performance. Owner shall commence construction of Phase I and Phase II of the Improvements (each as described in Exhibit A attached hereto) on or before October 28, 2005, and shall commence construction of Phase III of the Improvements (as described in Exhibit A attached hereto) on or before May 15, 2007 (each of said October 28, 2005 and May 15, 2007 dates being herein referred to as a "Commencement Date"), and shall complete such construction of the Phase I and Phase II Improvements by April 30, 2006, (the "Phase I and Phase II Completion Date"), and complete such construction of the Phase III Improvements on or before October 30, 2007 (the "Phase III Completion Date"). Without limiting the provisions or effect of this Section 2.2.3 or Section 3.1 hereof, the construction of all of the Improvements shall be completed on or before October 30, 2007. For the purposes of this Agreement, the completion of construction of each Phase of the Improvements shall be evidenced by a contractor's and architect's certificate to be provided by Owner, P6402-0459\924076v4.doc and reasonably acceptable to the Agency as to form and content, and certifying that the construction of the subject Improvements has been substantially completed in substantial compliance with the Final Construction Drawings and the plans and specifications approved by the City, except for specified "punch - list" items that do not impair the function or use of the subject Improvements (the "Certificate of Completion"). Subject to the provisions of Section 7.7 hereof, if Owner has not commenced construction of each Phase of the Improvements by the corresponding Commencement Date set forth in this Section 2.2.3, or completed construction of each Phase of the Improvements by the corresponding Completion Date set forth in this Section 2.2.3, then Agency may, in its sole and absolute discretion, terminate this Agreement upon ten (10) working days prior written notice to Owner and Owner's failure to cure within such period, and the Agency shall automatically be released from all of its obligations under this OPA, including but not limited to its obligation to pay the Agency Consideration to the Owner; provided, however, the Agency shall pay for Improvements completed as of the date of such termination." 3. Except as specifically modified hereby, the OPA shall remain unaffected and unchanged by reason of this Amendment. 4. The OPA is hereby ratified and affirmed by Developer and shall remain in full force and effect as modified hereby. 5. This Amendment shall bind and benefit the heirs, successors, and assigns of Developer and Agency, respectively. 6. Nothing contained in this Amendment shall be construed as giving any person or entity, other than the parties hereto, any right, remedy or claim under, or with respect to, the OPA. 7. Developer acknowledges and agrees that if and to the extent that Agency has not heretofore required Developer to strictly comply with the covenants, agreements and obligations contained in the OPA, such action or inaction shall not constitute a waiver of, or otherwise affect or prejudice Agency's future rights, remedies, benefits or powers under the OPA in any manner, including the right to require performance of such covenants, agreements and obligations strictly in accordance with the terms and provisions of the OPA. 8. The OPA as modified by this Amendment constitutes the final expression and the entire and exclusive agreement of the parties hereto with respect to the subject matter hereof, and supersedes in all respects any and all other negotiations and agreements between the parties hereto, whether oral or written. 9. This Amendment shall be governed by and construed in accordance with the laws of the State of California. 10. If any court of competent jurisdiction determines any provision of this Amendment to be invalid, illegal or unenforceable, that provision shall be deemed severed from P6402-0459\924076v4.doc 2 the rest, which shall remain in full force and effect as though the invalid, illegal or unenforceable provision had never been a part hereof. 11. No provision of this Amendment may be changed, discharged, supplemented, terminated or waived except in a writing executed by the parties hereto. 12. In executing this Amendment, neither party has relied on any inducements, promises or representations made by the other party or its attorney, other than those set forth herein. 13. This Amendment may be executed in two or more counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. [signatures begin on next page] P6402-0459\924076v4.doc WITNESS the signatures of the parties as of the date first set forth above. ATTEST: Secretary APPROVED AS TO FORM: AGENCY GENERAL COUNSEL, Richards, Watson and Gershon, a professional corporation PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic By: Name: Title: AMERICAN INVESTMENT PALMS TO PINES EAST, LLC, a California limited liability company By: Name: Title: By: Name: Title: P6402-0459\924076v4.doc 4