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HomeMy WebLinkAboutContract 1781C-/7-81 TRIPARTY AGREEMENT TO EXTEND OUTSIDE CLOSING DATE This Triparty Agreement to Extend Outside Closing Date ("Agreement") is entered into by and among the CITY OF CATHEDRAL CITY, a California charter city and municipal corporation, acting solely in its role as the Successor Housing Agency of the former Redevelopment Agency of the City of Cathedral City ("Cj"), CITY URBAN REVITALIZATION CORPORATION, a California nonprofit corporation ("CURC") and CATHEDRAL CANYON DEVELOPMENT, LLC, a California limited liability company ("CCD"). CURC and City may be collectively referred to in this Agreement as "Sellers." City, CURC, and Developer are sometimes individually referred to as "Party," or collectively as "Parties." RECITALS A. City entered into that certain Purchase and Sale and Escrow Instructions Agreement with CCD dated April 26, 2017, related to the sale of certain real property by City to CCD, which agreement was amended on September 27, 2017 ("City Agreement"). CURC entered into that certain separate Purchase and Sale and Escrow Instructions Agreement with CCD dated April 26, 2017, related to the sale of certain real property by CURC to CCD, which agreement was amended on September 27, 2017 ("CURC Agreement"). The Parties collectively entered into that certain Cathedral Canyon Performance Agreement dated September 27, 2017 related to CCD's development of the Project, as defined therein, ("Performance Agreement"). Collectively the City Agreement, CURC Agreement, and Performance Agreement are referred to herein collectively as the "CCD Agreements." B. The Parties mutually desire to extend the ''Outside Closing Date," as defined in the Section 5.1 of City Agreement and Section 5.1 of the CURC Agreement, to permit the Parties to negotiate and consider possible amendments to the CCD Agreements, including, without implied limitation, the addition of a new development partner to CCD, extensions of certain deadlines and timelines, and such other amendments as to which the Parties may agree. NOW THEREFORE, in consideration of the valuable considered stated herein the value of which the Parties agree is satisfactory, and of the promises made and recited herein, the Parties hereto agree as follows: TERMS AND CONDITIONS Section 1 Incorporation of Recitals Each of the Recitals set forth above is incorporated in this Agreement and the Parties each acknowledge and agree to the truth and accuracy thereof RIV #4827-0447-8579 vl 1 C1186-006-3511076 1 Section 2. Extension of the Outside Closing Date The "Outside Closing Date" is defined in Section 5.1 of the City Agreement, as amended by that First Amendment and in Section 5.1 of the CURC Agreement, as amended the by the First Amendment, and is currently Sunday, September 30, 2018 (which the Parties agreed in the Performance Agreement would as a practical matter be Monday, October 1, 2018). The Parties hereby agree that the Outside Closing Date shall, contingent upon timely satisfaction of the conditions precedent set forth in Section 4, below, be extended for thirty (30) days, through and including Wednesday, October 31, 2018. For purpose of clarification and consistent with the current terms of the City Agreement and CURC Agreement, no event of force majeure, cure period, or other intervening event as defined in the City Agreement and CURC Agreement may extend the Close of Escrow past the Outside Closing Date (as so extended by this Agreement) without the written agreement of the Parties, given or withheld in their sole and absolute discretion. Section 3. Extension of Schedule of Performance Exhibit "C" to the Performance Agreement is a Schedule of Performance containing dates for performance of specific obligations by City, CURC and/or CCD, as the case may be, for the development and construction of the Project. The Parties agree that the Close of Escrow date of October 1, 2018 as stated therein shall, contingent upon timely satisfaction of the conditions set forth in Section 4, below, be extended for thirty (30) days, through and including Wednesday, October 31, 2018. Section 4. Conditions Precedent to Extension The Parties agree that the extension of the Outside Closing Date and the dates in the Schedule of Performance as provided for in Sections 2 and 3 above are expressly conditioned upon the full satisfaction, in the determination of City and CURC, of the conditions stated below. 4.1 CCD shall pay directly to City, outside of escrow, twenty thousand dollars ($20,000.00), in good and sufficient funds on or before 3:00 p.m. October 1, 2018. This payment shall be non-refundable to CCD and shall not be credited against or applicable to the Purchase Price as defined in the City Agreement. 4.2 CCD shall pay directly to City, outside of escrow, ten thousand four hundred fifty-nine dollars and no cents ($10,459.00) for City cost recovery, fees and chargesincurred and levied through April 20, 2018. City hereby waives any cost recovery for staff costs incurred or to be incurred by City's Economic Development Department related to the transaction. This payment shall be non-refundable to CCD and shall not be credited against or applicable to the Purchase Price as defined in the City Agreement or CURC Agreement. RIV #4827-0447-8579 v1 2 C 1186-006 - 3511076.1 4.3 Each Party must approve this Agreement, its authorized representative(s) must have duly executed this Agreement and have transmitted an executed original counterpart of the Agreement to each other Party, by no later than Noon on September 28, 2018. Failure of any Party to approve, execute, or deliver original counterparts shall automatically, and without any action needed by any Party, void this Agreement ab initio. Section 5. Non -Waiver of Rights under CCD Agreements. The Parties agree that each Party's approval and execution of this Agreement, is without prejudice to, shall not waive or have any effect upon, and shall be with a full reservation of, all of the rights, defenses or claims each Party has or may have under, or related to, the CCD Agreements. By way of example only, and not limitation, each Party acknowledges that a notice of default that is delivered by any Party under the CCD Agreements on or before Wednesday, October 31, 2018, shall have the same force and effect as if such notice had been delivered on Friday, September 28, 2018. Each Party's acknowledgement of the foregoing is not an agreement with, admission of, or other acquiescence to the materiality, adequacy, veracity or correctness of the substance of any such notice of default. Section 6. Miscellaneous Provisions 6.1 Remainder Unchanged. Except as specifically modified and amended in this Agreement, the CCD Agreements remain in full force and effect and binding upon the Parties. 6.2 Integration. This Agreement constitutes the entire understanding and agreement of the Parties and supersedes all negotiations or previous oral or written agreements between the parties with respect to the specific thirty (30) -day extension of the Outside Closing Date provided for in this Agreement, subject to the reservation of rights and non -waiver provisions of Section 5, above. 6.3 Effective Date 1 Conditions Precedent. This Agreement shall not become effective and binding upon the Parties unless and until the conditions precedent set forth in Section 4 have been satisfied as determined by City and CURC. 6.4 References. All references to the CCD Agreements include all their respective terms and provisions. All defined terms utilized in this Agreement have the same meaning as provided in the CCD Agreements, unless expressly stated to the contrary in this Agreement. R!V #4$27-0447-$579 v1 3 C1186-006 -35110761 6.5 Severabilitv The Parties agree that, should any provision, section, paragraph, sentence or word of this Agreement be rendered or declared invalid by any final court action in a court of competent jurisdiction or by reason of legislation, the remaining provisions, sections, paragraphs, sentences and words of this Agreement shall, to the fullest extent legally permissible, remain in full force and effect and the Parties agree, to the fullest extent legally permitted, in good faith to immediately amend this Agreement in such a way as to provide alternative provisions, sections, paragraphs, sentences or words as to carry out the intent of this Agreement. 6.6 Venue Any legal action or proceeding involving the application, interpretation, or enforcement of this Agreement must be instituted in the Superior Court of the County of Riverside, State of California, or in any other appropriate court in that County, or in the Federal District Court in the Central District of California. 6.7 Governing Law The procedural and substantive laws of the State of California shall govem the interpretation and enforcement of this Agreement, without regard to its conflicts of laws principles. 6.8 Costs and Attornevs' Fees If any Party hereto files any action or brings any action or proceeding against the other arising out of this Agreement, seeks the resolution of disputes, or is made a Party to any action or proceeding brought by a third party, with respect to the application, interpretation, or enforcement of this Agreement, then, as among the Parties, the prevailing Party(ies) shall be entitled to recover as an element of its (their) costs of suit or resolution of disputes, and not as damages, its (their) reasonable attorneys' fees as fixed by the Court or other forum for resolution of disputes as may be agreed upon by the Parties in such action or proceeding or in a separate action or proceeding brought to recover such attorneys' fees. 6.9 Counterparts This Agreement constitutes the entire understanding and agreement of the Parties. The Parties may sign this Agreement in counterparts. Faxed or electronically submitted signature pages shall bind a Party as if the other Parties had received original signatures. 6.10 Amendments All amendments to this Agreement or to the CCD Agreements must be in writing and signed by the authorized representatives of each Party. No amendment to this Agreement or to the CCD Agreements shall be effective and binding against the RIV #4827-0447-8579 vi 4 C1186-006-3511076.1 City or CURC unless approved by City's City Council and CURC's Board of Directors as the case may be, acting within the full limits of the discretion afforded to them by law and after compliance with all notice, hearing and other applicable legal requirements. 6.11 Effective Date The "Effective Date" of this Agreement is the date upon which it has been executed by the authorized signatories of each of the Parties. 6.12 Time is of the Essence The Parties acknowledge and agree that time is of the essence as to their performance of and compliance with each and every obligation and condition of this Agreement as to which time is an element. WHEREFORE, the Parties, intending to be bound hereby, have affixed their authorized signatures to this Agreement. CITY: DEVELOPER: CITY OF CATHEDRAL CITY, a California CATHEDRAL CANYON DEVELOPMENT, municipal corporation LLC, a California limited liability company Stanley E. Henry, Mayor Date: ` 4(0 , 2018 APPROVED AS TO LEGAL FORM: By: ��► Eric S. Vail, City Attorney Date: ©y - ZG-- Zo/S , 2018 [Signatures Continued on Next Page] R1V #4827-0447-8579 vi By: Name: b -2i Its: Managing Member Date: 1-",,t 7- , 2018 By: Name: Its: Member Date: , 2018 5 C1186-006 -- 3511076.1 CURC: CITY URBAN REVITALIZATION CORPORATION, a California nonprofit corporation By: �J� Tami`E. Scott Chief Financial Officer Dated: Vz �2018 APPROVED TO AS TO LEGAL FORM: GRESHAM SAVAGE NOLA ' & TILDEN, a professional corporation (*VW- evin'Tando Dated: � 7 018 , 2018 RIV #4827-0447-8579 v1 6 C1186-006 -3511076.1