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Cathedral City
AMENDMENT NO. 5
TO
PROPERTY TRANSFER AGREEMENT
AND
ESCROW INSTRUCTIONS
This Amendment No. 5 ("Fifth Amendment") is to that certain Property Transfer
Agreement and Escrow Instructions ("Agreement") dated as of August 28, 2013, by and
between the City of Cathedral City solely in its role as the Successor Housing Agency to the
former Redevelopment Agency of the City of Cathedral City, a California municipal corporation,
("City" or "Seller") and Saxony Living, LP, a California limited partnership ("Developer" or
"Buyer") as per the Assignment of Property Transfer Agreement ("Assignment") effective
November 18, 2014, between Thermal Land, LLC, a California Corporation ("Assignor"), the
Developer, and the City. City and Developer collectively may be referred to herein as the
"Parties" or individually as "Party." This Fifth Amendment bears, for record purposes only, the
date of March 9, 2016.
The Developer requested that the terms of the Agreement be modified to
accommodate the time allocated by Developer to Developer's consultants and contractors to
complete the City application requirements necessary to entitle development and construct the
sixty-nine (69) unit apartment building, which includes five (5) ground floor retail units, with a
total rental area of eighty-seven thousand nine hundred ninety-five (87,995) square feet (the
"Project"). The City Council acting on behalf of the City as Successor Housing Agency to the
former Redevelopment Agency directed the City Manager to act on their behalf to extend the
Agreement accordingly.
Section 1. Effect of Fifth Amendment
Except as specifically set forth herein, the original terms of the Agreement and in
accordance with the Assignment, remain unmodified or altered, and shall be enforceable on
their terms. Defined terms not otherwise defined in this Fifth Amendment shall have the same
meaning as the term defined in the Agreement. All original provisions of the Agreement not
otherwise modified by the Fifth Amendment shall apply to all actions taken under this Fifth
Amendment as if this Fifth Amendment was an integral part of the Agreement, including , but
not limited to,the provisions of Section 13 in its entirely.
Section 2. Extension of Time.
Section 5.12 of the Agreement provides that the Close of Escrow shall occur "not later
than February 28, 2014." Amendment No. 2 to the Agreement previously extended this
deadline to February 28, 2015. Amendment No. 3 to the Agreement previously extended this
deadline to November 30, 2015. Amendment No. 4 to the Agreement previously extended this
deadline to May 12, 2016. Section 5.10 of the Agreement provides specified conditions for the
Close of Escrow.
1
Section 10 of the Agreement provides that all Project construction and Property
development, as approved and accepted by the City, shall be completed by February 28, 2015,
and imposes damages upon the Developer for a failure to meet this deadline. Amendment No.
2 to the Agreement previously extended this deadline to February 28, 2016. Amendment No. 3
to the Agreement previously extended this deadline to December 29,2016.
Seller hereby grants to Buyer an additional extension of the time period provided in
Section 5.12 from November 30,2015,to and including May 12, 2016. Likewise,the deadline of
December 29, 2016, for completion of the Project set forth in Section 10 of the Agreement is
hereby extended to May 25, 2017. No further amendments, including extensions, will be
granted to the Agreement except upon approval of the City Council of the City, as it may
determine in its sole and unrestricted determination.
The extensions are revised and reflected in the Escrow Deadlines as Exhibit "A" to this
Amendment which hereby replaces Exhibit "F" of the Agreement. The Project Schedule is
provided as Exhibit"B"to this Amendment.
In addition to those specified conditions, and as a condition of this Extension of Time for
the Close of Escrow, Developer shall be required to fulfill all conditions set forth on Exhibit "C"
to this Amendment by no later than March 12,2015.
WHEREFORE, the Parties, intending to be bound hereby, have affixed their authorized
signatures to this Third Amendment.
CITY: Developer:
City of a),-dral City Saxony Living, LP, a California limited partnership
'Al.By By: .41k\n__.
Charles P. McClendon J.L.J. Management, L.L.C.,
City Manager a Delaware limited liability company
Its general partner
Attest:
•� •i / B .
Name: Gary ••wel i Name:Martin Dolemo
Title:Manager
App ved as to Co tent:
J,
1, UV)
Leisa A. Lu s
Business Development Administrator
Approved as • or r.
Eric S.Vail,City Attorney
2
Exhibit"A"
Escrow Deadlines
(Amended March 9, 2016)
PARTY ACTION WHEN
Buyer Deposit with Escrow Agent one fully Within three (3) City-business
executed counterpart of the Agreement, and days after the Effective Date
the Deposit. Date of said delivery constitutes of the Agreement.
"Opening of Escrow."
Seller Deliver to Buyer copies of any and all Within three (3) City-business
contracts service agreements, maintenance days of the Opening of
agreements, and similar documents Escrow.
evidencing any management and other
services relating to the property (e.g.
landscaping agreements)("Service
Contracts").
Buyer Deposit with Escrow Agent the sum of Simultaneously with Opening
$15,000. of Escrow.
Escrow Agent Escrow Agent must indicate its acceptance of Within five (5) calendar days
Agreement Section 5, in writing delivered to after Opening of Escrow.
the Parties. The Escrow Agent must also
inform the Parties of the Opening of Escrow
Date and the date set for Close of Escrow.
Upon said written communication, Escrow
Agent is empowered to act under this
Agreement.
Escrow Agent Cause Preliminary Title Report ("PTR")to be Within ten (10) calendar days
prepared, and provide Buyer and Seller with after Opening of Escrow.
copies of the PTR.
Buyer Buy may object in writing to any exceptions Within ten (10) City-business
disclosed in the PTR. days of Buyer's receipt of the
PTR.
Seller If Buyer objects in writing to any exemptions Remove exceptions prior to
disclosed in the PTR, Seller must either (1) Close of Escrow, or notify
cause removal of exceptions prior to Close of Buyer within ten (10) City-
Escrow, or (2) notify Buyer, within ten (10) business days of receipt of
City-business days of receipt of Buyer's Buyer's objections of the
objections, of Seller's inability to cause inability to remove
removal of said exceptions. exceptions.
Seller Deadline to disclose in writing to Buyer, any Not less than ten (10) City-
defects in or of the Property. business days prior to Close of
Escrow.
Escrow Agent Provide Buyer and Seller with a pro forma Not less than five (5) City-
closing statement, showing any costs, funds business days prior to the
owed by, or credits to that Party. Close of Escrow.
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PARTY ACTION WHEN
Seller Deliver the Grant Deed and any additional Within five (5) City-business
necessary, requested documents,to Escrow days of receiving a written
Agent. demand from Escrow Agent.
Buyer Deliver balance of Purchase Price and any No less than three (3) City-
additional funds required to close Escrow to business days prior to the
Escrow Agent. Close of Escrow.
Seller Terminate all Service Contracts and deliver At Close of Escrow.
possession of Property.
N/A CLOSE OF ESCROW NO LATER THAN SEPT. 30,
2016
Buyer Provide (1) satisfactory evidence of legal Prior to Close of Escrow (i.e.
formation and existence in good standing to by Sept. 30, 2016).
Seller, and (2) proof of financing to Seller;
Obtain approvals of use and design of the
Project from Seller; and Obtain requisite
entitlements for Project construction
(including grading, building and construction
permits).
Buyer Commence Project construction. Immediately after Close of
Escrow.
Buyer Complete all construction of Project. NO LATER THAN SEPT. 28,
2017.
Either Party Duration of Cure Period upon receipt of a Ten (10) days, unless
Notice of Default. extended by City in City's sole
discretion.
Seller Record Notice of Completion. Upon Buyer's full
performance of all obligations
under the Agreement,
including the completion of
the Project to the satisfaction
of the City.
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Exhibit "B"
Project Schedule
(rev. 3-9-16)
✓ Entitlement Submittal 3/12/15
✓ City's 30-day Initial Review; Completeness Letter; Environ. Determination 4/13/15
Note: Req'd studies (such as air quality, greenhouse gas, traffic impact, etc)
and Phase I/II soils report(s) can run concurrently
✓ Plan Re-submittal, inc. Phase 1 Report 10/12/15
✓ City's Second Review and Comment Letter provided 12/10/15
Traffic / Noise / Cultural Studies Submitted/ Hydrology/WQMP/ Grading/
SCE Design Contracted 4/04/16
Studies Review and Comment Period 4/25/16
Plans / Studies Re-submittal 5/16/16
City Comments Provided 6/07/16
Plan Re-submittal 6/21/16
Deem Project Complete and Start initial Study 6/27/16
Route Project to outside agencies 6/29/16
Plans distributed to ARC Subcommittee 6/29/16
ARC Subcommittee Review 7/06/16
2nd ARC Subcommittee Review 7/20/16
Plan Resubmittal 8/03/16
Initial Study/Environmental Completion 8/24/16
Plans distributed to Planning Commission 8/31/16
Planning,Commission Public Hearing 9/07/16
All items below at applicant's risk
Construction Document Preparation and Submittal 7/25/16
1st Building Plan Check and Comments Provided 8/15/16
Other Department Review and Comments (Engineering and Fire) 8/15/16
10 business Days for Re-submittal 8/29/16
2nd Plan Check Complete and Approval 9/19/16
Community Facilities District Legally Defined 9/21/16
Council review of Final Map 9/28/16
Final Map recorded 9/29/16
Grading, Engineering and Building Permit Issued* 9/29/16
Close of Escrow 9/30116
Commence Construction 10/17/16
Construction Complete 9/28/17
*This date'could fluctuate due to the complexities related to the public utility design, easements,
abandonments, new street locations and alignments, and associated mapping and approval processes—
potentially resulting in longer review times, revision times, and/or an increase in the number of public
meetings; however, Close of Escrow and Construction Completion dates remain constant.
Note: The items in bold refer to actions by the Applicant