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HomeMy WebLinkAbout05671 - COMDYN LLC EXCLUSIVE AGR TO NEGOTIATE FOR CONDO PROJECT INDIAN CY / SAN RAFAEL Ci V U, �i N� PAI-71 r S r-,. 2011 OCT 31 AM 9: 04 , t I" _ p,5b11 . I IES ; r,ui - CITY CLER October 24, 2011 Kathie Hart, CIVIC NO Office of the City Clerk City of Palm Springs P.O. Box 2743 Palm Springs, CA 92263 Re: Certificate of insurance no longer required CAL I1�)RN1k 9p4'-' Dear Ms. Hart, - We received your letter dated 10.20.11 requesting an updated certificate of 9-77 insurance naming the Community Redevelopment Agency as additional insured on Community Dynamics' general liability insurance policy. Please note that our Exclusive Agreement to Negotiate (EAN) with the Community Redevelopment Agency expired on February 25, 2011, as is confirmed by the enclosed letter from John Raymond. As a result, Community Dynamics is no longer under contract with the Agency and will no longer be naming the Agency or City as additional insured on its policies. Please contact me at 310-399-9555 x204 if there are any questions. Sincerely, Steve Roberts Vice President, Development Encl. Cc: Dale Cook w Q QpLM S,o R-z City of Palm Springs e " Community and Economic Development Department x + 3200 E.Tahquitz Canyon Way • Palm Springs,California 92262 �eO°>oearee,•'� TEL:i760)323-8259 • FAX(760)322-8325 • TDD(76o)864-9527 Qimmmoy Redevelopment Agency•Community Development Block Gram f FORK Dc vro.wn De.elopment•Econom:.Devebpment•Noosing•PnMa Art February 25,2011 Mr. Loren Bloch,President ComDyn, LLC c/o Community Dynamics 2800 28`h St, Suite 206 Santa Monica, CA 90405 Dear Loren: As we have discussed, the Board of the Community Redevelopment Agency("Agency") did not give direction to staff to allow the extension of the Exclusive Agreement to Negotiate ("EAN") between the Agency and ComDyn. Thus, the EAN expired on February 16, 2011. The relationship between the Agency and your firm has ended and your proposal for a 51-unit affordable townhome project on Agency-owned property at Indian Canyon Drive and San Rafael Road is no longer in effect. We will notify the Planning Department that no further work on the project appeal is authorized and the entitlement process is ended. If you have invoices for previously-approved work under the EAN, please remit them as soon as possible so that we can close out the Recoverable Grant account. It is unfortunate that the market for the proposed product changed so dramatically over the past several years and compromised the feasibility and timing. I know that you worked very hard on the project and tried to balance the design concerns with the financial reality of building a quality, affordable product. If the Agency ever considers a for-sale affordable project on another site, we look forward to the possibility of working with you again. Best of luck on your future projects. Sincerely, JhnSRay od it or of o unity and Economic Development Cc: David H. Ready,Esq.,Ph.D., City Manager Douglas C. Holland,Esq.,City Attorney Thomas Wilson,Assistant City Manager Craig Ewing, Director of Planning Services Post Office Box 2743 • Palm Springs, California 92263-2743 �pAIMSA City o am f Pl Spring s o Community and Economic Developtr►ent Departni.ent A A 3200 G.Tahquitz Canyon Way • Palm Springs,California 92262 tic 9' TLL:(760) 2 5-8259 • FAX(760)32)-8325 • T1)l)(760)86,1-95 27 ORPO R AL EV ' C,q \P (_ommuniry Rctlt•vcluhmcnr Agency • CmmMuuiity Developmcnr Rlm k Grunt L/FO Vt Downrown D(N,( ohmcnr • rcunomi(:Devt•Iopmrn[ • Housin t • Pul li< Art October 19, 2010 Mr. Stephen Roberts, Vice President ComDyn PS, LLC 2800 28 h St., Suite 206 Santa Monica, CA 90405 Re: ComDyn Request for EAN Extension Dear Mr. Roberts: I have received your letter to Tom Wilson regarding your request to extend the Exclusive Agreement to Negotiate ("EAN") dated May 21, 2008, between the Palm Springs Community Redevelopment Agency ("RDA") and ComDyn PS, LLC. The EAN has previously been extended on May 4, 2009 and September 10, 2009. 1 have reviewed your letter with Tom Wilson, Assistant Executive Director, and Doug Holland, Agency Counsel. It is my understanding that the current EAN, as previously extended, expires on October 21, 2010 and that you are in the process of having certain development entitlement applications reviewed by the City of Palm Springs. You have requested that the EAN be extended for an additional 90 days to January 21, 2011 to allow the land use application process to be completed and for the RDA and ComDyn to negotiate a DDA as contemplated in the EAN. On behalf of the RDA, I agree to (1) extend the EAN until January 19, 2011, and (2) approve a modified Schedule of Performance as provided in the attachment to this letter. In agreeing to this extension,the RDA reaffirms that nothing in the EAN or any extension thereto affects in any way the discretion of the City of Palm Springs, as the land use authority of the City of Palm Springs, in its review and consideration of the proposed project. Please sign your concurrence below on both copies of this letter and return one of the executed copies of this letter to me. The additional copy is for your records. Very truly yours, Agreed and Acknowledged: David H. Read ., Ph Stephen Roberts, Vice President Executive Director ComDyn PS, LLC Post Office Box 2743 • Palm Springs, California 92263-2743 Exhibit"B" Schedule of Performance Agency completes and submits an application to CaIHFA's Residential Development Loan Program 05/31/08 Agency enters into contract with consulting firm to undertake environmental assessment 06/14/08 Developer enters into contracts with consulting firm(s)for ALTA survey, preliminary soils and geologic investigation, preliminary grading and hydrologic analysis, and phase 1 environmental assessment 07/08/08 Developer and Agency staff complete MOU (Term Sheet)for DDA 07/31/08 Developer's studies and reports completed 08/15/08 Developer completes physical due diligence and notifies Agency whether Developer approves physical condition of Site 08/15/08 Developer submits pre-application 08/19/08 Developer submits formal application for entitlements 03/19/09 Design approved by Architectural Advisory Committee 06/08/09 Revised design disapproved by Architectural Advisory Committee 04/12/10 Planning Commission recommends denial of Developer's application 04/14/10 Developer files an Appeal 04/26/10 City Council votes to continue the item and refers the Project to the City Council's Housing Subcommittee for further consideration 05/19/10 Developer and Agency negotiate a DDA pursuant to Section 1 F of the EAN 10/29/10 City Council considers Developer's Appeal and takes action on applications 01/19/11 DDA and environmental considered by Agency Board 01/19/11 734340.1 r ti T ll 11 III I IIII u L ,tll I I I; ilI I I I ��JJ J �� II ilJl i Il � September 10, 2009 Mr. Thomas J. Wilson Assistant City Manager, Development Services City of Palm Springs 3200 E. Tahquitz Canyon Way Patin Springs, CA 92262 Re: Extension of Exclusive Agreement to Negotiate dated 5.21.08 nun Y;I ill,.,.,i Mill I111 l I I Dear Tom, •,u r, ln all.n By way of this letter ComDyn PS, LLC requests that the Community Redevelopment Agency (CRA) extend the term of the Exclusive Agreement to Negotiate (LAN) between the CRA and CoinDyn, LLC (which ComDyn, LLC assigned to ComDyn PS, LLC on 7.8.08) to October 21, 2010, On May 21, 2008 the CRA approved the EAN for a one-year period for the development of a moderate-income condominium project located on 3.63 acres currently owned by Agency at the SEC of Indian Canyon and San Rafael. On May 13, 2009 the CRA and ComDyn PS extended the EAN Period of Negotiation to October 21, 2009. The EAN provides a basis for the Executive Director to extend the Period of Negotiation without seeking additional authorization from the Agency Board. Specifically, Section 2.A.6 provides for extensions "by mutual agreement of the Parties (with the Executive Director having the authority to enter into such an agreement without seeking additional authorization from the Agency Board)". At this time the major business tennis of the DDA have been agreed upon as evidenced by a Memorandum of Understanding dated July 31, 2008- Further, ComDyn PS has submitted the formal entitlement application to Planning Services, received approval from the City's Architectural Advisory Connnittee, is currently engaged in the planning process and has otherwise met the EAN obligations including reporting progress to CRA staff on a monthly basis. We anticipate the extension will provide the necessary time for the Planning Commission and the City Council to review ark- oplppwi the entitlement applications, and for the completion and Agency Board approval of the Disposition and Development Agreement. Page 1 of 2 c. t To document this extension, we request that the Executive Director please sign in the area provided below in order to acknowledge the following: — The Period of Negotiation is hereby extended to October 21, 2010, and — For the Schedule of Performance to correspond with the extended Period of Negotiation, the Schedule of Performance attached to the Agreement as Exhibit"B" is hereby replaced with the attached Exhibit "B". Please return one copy if this letter to my attention at 2800 281' Street, Suite 206, Santa Monica, CA 90405. The additional copy is provided for the CRA's files. We look forward to continuing our work with City and CRA staff on this exciting project. If you have any questions, please contact me at 310-399-9555 x204. Sincerely, Stephen Roberts Vice President Encl. Cc: Dale Cook AGREED AND ACKNOWLEDGED: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic By'_�__ , Executive Director Dated: APPROVED /D• 09- �b15 Page 2 of 2 Exhibit "B" Schedule of Performance Agency completes and submits an application to CaIHFA's Residential Development Loan Program 5/31/08 Agency enters into contract with consulting firm to undertake environmental assessment 6/14/08 Developer enters into contracts with consulting firm(s) for ALTA survey, preliminary soils and geologic investigation, preliminary grading and hydrologic analysis, and phase 1 environmental assessment 7/8/08 Developer and Agency staff complete MOU (Term Sheet)for DDA 7/31/08 Developer's studies and reports completed 8/15/08 Developer completes physical due diligence and notifies Agency whether Developer approves physical condition of Site 8/15/08 Developer submits pre-application 8/19/08 Developer submits formal application for entitlements 3/19/09 Design approved by Architectural Advisory Committee 6/8/09 Developer and Agency complete execution ready DDA 3/31/10 Environmental determination approved by Planning Commission 5/26/10 Tentative map and DDA approved by City Council and Agency Board 10/20/10 May 4, 2009 Mr. Thomas J. Wilson Assistant City Manager, Development Services City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Re: Extension of Exclusive Agreement to Negotiate dated 5.21.08 P, Ili ,li I'll 'I'll- I,,. Dear Tom, "l'l" l By way of this letter ComDyn PS, LLC requests that the Community Redevelopment Agency (CRA) extend the teen of the Exclusive Agreement to Negotiate (EAN) between the CRA and ComDyn, LLC (which ComDyn, LLC assigned to ComDyn PS, LLC on 7.8.08) by one hundred fifty (150) days to October 21, 2009. On May 21, 2008 the CRA approved the EAN for the development of a moderate- income condominium project located on 3.63 acres currently owned by Agency at the SEC of Indian Canyon Avenue and San Rafael. The EAN was approved for a one-year period and will therefore expire on May 21, 2009 unless extended. Sections 2.A.2 and 2.A.6 of the EAN provide a basis for the Executive Director to extend the Period of Negotiation without seeking additional authorization from the Agency Board. Specifically: — Section 2.A.2 provides for extensions "by up to one hundred eighty (180) days (in increments of not less than thirty (30) days each) if the major business terms [of the DDA] have been agreed to and the Executive Director determines that further negotiations are likely to result in a written agreement', and — Section 2.A.6 provides for extensions "by mutual agreement of the Parties (with the Executive Director having the authority to enter into such an agreement without seeking additional authorization from the Agency Board)"_ The major business teens of the DDA have been agreed upon as evidenced by a Memorandum of Understanding dated July 31, 2008- Further, we have submitted the formal entitlement application for the project to Planning Services, are currently engaged in the planning process, and have otherwise met our EAN obligations including reporting our progress to CRA staff on a monthly basis. Page 1 of Vie, , °•' = C We anticipate the 150 day extension will provide the necessary time for staff and the Architectural Advisory Committee to evaluate our design program, for the Planning Commission and the City Council to review and approve the entitlement applications, and for the completion and Agency Board approval of the Disposition and Development Agreement. To document this extension, we request that the Executive Director please sign in the area provided below in order to acknowledge the following: — The Period of Negotiation is hereby extended by one hundred fifty (150) days to October 21, 2009, and — For the Schedule of Perfon-nance to correspond with the extended Period of Negotiation, the Schedule of Performance attached to the Agreement as Exhibit"B" is hereby replaced with the attached Exhibit`B". Please return one copy if this letter to my attention at 2800 28th Street, Suite 206, Santa Monica, CA 90405. The additional copy is provided for the CRA's files- We look forward to continuing our work with City and CRA staff on this exciting project. If you have any questions, please contact me at 310-399-9555 x201. Sincerely, Stephen Roberts Vice President Encl. r a —kCc: Dale Cook ..a o ]5AGREED AND ACKNOWLEDGED: sv COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM ;; J --zn SPRINGS, a public body, corporate and politic - r �6 ATTEST-,- By: Executive Director 'r ' ff sst- Sdcretary -_ Dated: a _— `�Hi� Page 2 of 2 111otli`.",,...,;�i _. Exhibit "B" Schedule of Performance Agency completes and submits an application to CalHFA's Residential Development Loan Program 5/31/08 Agency enters into contract with consulting firm to undertake environmental assessment 6/14/08 Developer enters into contracts with consulting firm(s) for ALTA survey, preliminary soils and geologic investigation, preliminary grading and hydrologic analysis, and phase 1 environmental assessment 7/8/08 Developer and Agency staff complete MOU (Term Sheet) for DDA 7/31/08 Developer's studies and reports completed 8/15/08 Developer completes physical due diligence and notifies Agency whether Developer approves physical condition of Site 8/15/08 Developer submits pre-application 8/19/08 Developer submits formal application for entitlements 3/19/09 Developer and Agency complete execution ready DDA 7/15/09 Environmental determination approved by Planning Commission 9/16/09 Tentative map and DDA approved by City Council and Agency Board 10/21/09 EXCLUSIVE AGREEMENT TO NEGOTIATE ComDyn. LLC THIS EXCLUSIVE AGREEMENT TO NEGOTIATE(this"Agreement")is made as of this 21st day of May, 2008, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic ("Agency"), and COMDYN, LLC, a California limited liability company ("Developer"). Agency and Developer may sometimes hereinafter be referred to individually as a "Party" and collectively as the "Parties". RECITALS The Parties entered into this Agreement on the basis of the following facts, understandings and intentions: A. Agency is a public body, corporate and politic, exercising governmental functions and powers and organized and existing under the Community Redevelopment Law of the State of California (California Health and Safety Code Sections 33000, etseg.). B. Agency desires to implement the Redevelopment Plan for the Highland- Gateway constituted area of the Merged Redevelopment Project Area No. 1 (the "Redevelopment Plan") and fulfill its objectives under the Housing Element of the City of Palm Spring's (the "City's") General Plan (the "General Plan") by providing for the development of a fifty-two (52)-unit moderate-income condominium project(the"Project") at the southeast corner of Indian Canyon Avenue and San Rafael, consisting of approximately three and sixty-three one hundredths (3.63) acres currently owned by Agency (the "Site"). The Site is described on Exhibit "Al" and depicted on Exhibit "A2", each of which is attached hereto and incorporated herein by this reference. The proposed Project is consistent with the land use designation for the Site under the General Plan and the City's zoning ordinance. The Site is located within an R-2 zone, which allows for the construction of up to fifty-three (53) residential units on the Site prior to the addition of a density bonus for affordable housing. C. In March, 2007, Agency issued that certain Request for Qualifications and Concept Proposals (as amended, the "RFQ") seeking a developer for the Site. Developer responded to the RFQ with a submittal dated September 14, 2007 (together with the presentation and answers to questions of Agency staff at an interview conducted on March 13, 2008, "Developer's Proposal"). The Agency Board selected Developer as the developer for the Site in reliance on Developer's Proposal. D. Developer desires to construct the Project at the Site. E. The Agency acknowledges that no project at the Site which includes affordable housing will likely be financially feasible without public assistance, which �YFIGt l' AJ- BCD 488886.8 001775.0005 4 29 2006=1 15 PM A6VfJ; o l=e'vy`�+"�'�� N7 assistance may be in the form of direct grants, loans, subsidies and/or other public assistance programs. F. The Parties desire,for the period set forth herein,to negotiate diligently and in good faith the design, schedule, scope of development and other agreements described in this Agreement, in the RFQ and Developer's Proposal, including, without limitation, the terms and conditions of a disposition and development agreement("DDA")with respect to the Site. The DDA, if agreed upon and executed, will specify the rights, obligations and method of participation of the Parties with respect to the sale by Agency to Developer of the Site and development of the Site by Developer. NOW, THEREFORE, and in consideration of the mutual covenants hereinafter contained, it is mutually agreed upon by the Parties as follows: AGREEMENT SECTION 1 NATURE OF NEGOTIATIONS. A. Good Faith. The Parties agree that for the Period of Negotiation (as hereinafter defined)they will negotiate diligently and in good faith to prepare and enter into a DDA consistent with the provisions of this Agreement forthe development of the Project upon the Site. Each Party acknowledges and agrees that the other Party shall be deemed to be acting in good faith so long as it makes reasonable efforts to attend scheduled meetings, directs its consultants to cooperate with the other Party, provides information necessary to the negotiations to the other Party and uses commercially reasonable efforts to review and return with comments all correspondence, reports,documents or agreements received from the other Party that require such comments. The development will be subject to all rules, regulations, standards and criteria set forth in the Redevelopment Plan, the General Plan, applicable specific plans and zoning regulations, as may be amended from time to time, and with this Agreement. This Agreement is solely an exclusive right to negotiate and is not a final agreement. The Parties do not intend this Agreement to be a purchase agreement, option or similar contract or to be bound in any way by this Agreement, other than to establish a period of exclusive negotiations during which time each Party shall negotiate with the other in good faith and Agency shall not market the Site to any other interested parties. B. Site. The Project shall be located upon the Site. C- Financial Provisions. The Parties agree that, except as otherwise provided herein, each Party shall be responsible for its own out-of-pocket expenses incurred in connection with the negotiation and preparation of this Agreement and the matters addressed herein, including, without limitation: (i) review of environmental issues, both technical and legal and (ii) preparation of the DDA. The identification and scope of public improvements for the Project shall be based upon the results of the California Environmental Quality Act("CEQA") analysis for the Project. The DDA shall address, inter alia, (i) the transfer of the Site, (ii) the design and development of the Site, (iii) the -2- 468296.8 0017]5 0005 4 29 2009-1 15 PM financing and construction of the improvements upon the Site, (iv) homebuyer financing, (v) community outreach, marketing and sales programming, (vi) new sale and resale restrictions for the moderate income homebuyers reflecting Agency's programming priorities and the requirements of the applicable affordable housing provisions of California Redevelopment Law, (vii) the nature and extent of any and all public financial assistance from Agency and/or the City and (viii) the payment of fees of the City and any other government entity with review authority over the Project. D. Schedule of Performance. The Parties shall complete timely their respective obligations set forth on the Schedule of Performance, which is attached hereto as Exhibit "B" and incorporated herein by this reference. The DDA shall contain a separate schedule of performance apart from the Schedule of Performance. The Parties shall meet semi- monthly in order to review the Parties' progress under this Agreement and to allow the Parties to comment upon their respective efforts. The Parties agree to reasonably consider adjustments to the Schedule of Performance and the Period of Negotiation for delays caused by factors beyond the control of the Parties- E. CEQA. An initial study shall be undertaken for the purpose of determining the appropriate CEQA action. Once the appropriate CEQA action is determined, a more detailed environmental timeline shall be developed. F. Agreement to Negotiate. The Parties acknowledge that Developer's Proposal and this Agreement do not establish all of the essential terms for the transfer of the Site or the development of the Project and that although the Parties have set forth in this Agreement a framework for negotiation of such essential terms: (i)they have not set forth herein nor agreed upon all essential terms, including, e,g., terms and timing of the transfer of the Site, (ii)they do not intend Developer's Proposal or this Agreement to be a statement of all of the essential terms and (iii) the essential terms of any transaction, if agreed to by the Parties, shall be set forth, if at all, in the DDA approved and executed by authorized representatives of each of the Parties. The DDA shall not exist and shall not be binding unless and until it is fully and duly executed by both Parties. Each Party assumes the risk that, notwithstanding this Agreement and good faith negotiations, the Parties may not enter into a DDA due to the Parties' failure to agree upon essential terms of a transaction. G. Developer's Representations. Warranties, and Covenants. 1. Developer represents that it has the necessary expertise, experience, and financial capability to undertake the Project contemplated in the RFQ and Developer's Proposal; 2. Developer represents and agrees that its intended acquisition of the Site and its other intended undertakings pursuant to this Agreement shall be used only for the timely development of the Site and not for speculation in any manner; -3- 4888868 001775 0005 4.29.2008-1;15 PM 3. With respect to the Site, Developer shall only negotiate with Agency's negotiating team as defined in writing by the Executive Director of Agency(the"Executive Director') and with no other persons unless expressly authorized to do so by the Executive Director. Nothing in this Agreement shall restrict Developer from responding to inquiries from the Agency Board or communicating with the Agency Board as requested by Agency. During the Period of Negotiation, neither Developer nor Agency's negotiating team shall make any statements to the media about the proposed Project without the approval of the other Party, which approval shall not be unreasonably withheld or delayed. During the Period of Negotiation, the Parties shall coordinate community and neighborhood outreach efforts; 4. Developer acknowledges and agrees that the DDA shall include (i) certain restrictions (subject to certain exceptions) upon assignment, sale, encumbrance and use of the Site and/or any improvements thereon prior to issuance of the certificate of occupancy for the Project without approval of Agency and (d) certain restrictions on transfer of control of Developer prior to issuance of the certificate of occupancy for the Project in order to (a) assure that the use will be consistent with and promote the Project, (b) prevent speculation, (c) assure that any transferee has the resources, capability and experience to successfully develop the Project and (d) assure long-term maintenance of the Project in an attractive first-class condition; and 5. Developer agrees to make oral and/or written reports at least monthly (or at such other times as information is reasonably requested by the Executive Director) advising the Executive Director of all matters and studies being made. H. As-is; License and Insurance. Developer acknowledges and agrees that the Site will be conveyed (if at all) on an "AS IS, WHERE-IS AND WITH ALL FAULTS' basis, and, except as otherwise expressly provided in the DDA, Developer shall be obligated to release Agency with respect to Developer's acquisition and development of the Site and the condition of the Site, including any and all land use and environmental conditions of the Site. 1. Effective as of the date of execution of this Agreement by Agency, Agency hereby grants to Developer and its representatives and agents a revocable license during the Period of Negotiation to enter upon the Site for purposes of conducting Developer's due diligence inspections, provided, however, that prior to such access Developer shall: (i)deliver to the Executive Director written evidence that Developer has procured the insurance required under Section 1.H.2, (ii) give the Executive Director twenty-four (24) hours prior telephonic or written notice of any intended access which involves work on the Site or which may result in any impairment of the use of any portion of the Site, (iii) access the Site in a safe manner, (iv) conduct no invasive testing or boring without the written consent of the Executive Director, (v)allow no dangerous or hazardous condition created by Developer or Developer's agents, (vi) comply with all laws and obtain all permits required in connection with such access and (vii) conduct inspections and testing, subject to the rights of existing occupants and contractors, if any, and only after obtaining the Executive Director's consent, which shall not be unreasonably withheld or -4- 488886.8 001775.0005429.2008-1;15 PM delayed. The limited license granted herein is revocable by Agency and may be revoked during the continuation of any breach of this Agreement by Developer and shall be automatically revoked and terminated, without further action of Agency, upon the termination of this Agreement. 2. Developer shall obtain at Developer's sole cost and expense prior to commencement of any investigative activities on the Site, a policy of commercial general liability insurance covering any and all liability of Developer and its contractors and consultants arising out of any investigative activities on the Site and listing Agency as an additional insured thereunder. Such insurance shall be provided by insurer(s)authorized to do business in, and in good standing in, the State of California, with a Best's Key Rating of at least A VII and otherwise reasonably satisfactory to the Executive Director and Agency Counsel. Such policy of insurance shall be kept and maintained in force at all times during the term of this Agreement. 3. Developer hereby agrees to protect, indemnify, defend and hold Agency and the officials, employees, agents, representatives, consultants and contractors of Agency free and harmless from and against any and all claims, costs, expenses, losses, damages, liabilities, fees, fines and penalties resulting from Developer's access to the Site or its exercise of its rights underthe above referenced license, including any inspections, surveys, tests or studies performed by Developer or its employees, consultants or contractors, save and except where such claims result from the negligence or willful misconduct of Agency or its officials, employees, agents, representatives, consultants or contractors. Developer shall keep the Site free and clear of mechanics' liens and materialmen's liens related to Developer's inspection of the Site. The indemnification by Developer set forth in this Section 1.1-1.3 shall survive the termination of this Agreement, the execution of the DDA and the closing and transfer of the Site to Developer and shall not merge into any deed granted pursuant to the DDA. SECTION 2. PERIOD OF NEGOTIATIONS. A. The term of this Agreement (as it may be extended, the "Period of Negotiation")shall be a period of one (1)year from and after the date that this Agreement is executed by Agency, and it is the intent of the Parties to negotiate and prepare definitive documentation reflecting the transaction for execution and delivery within such Period of Negotiation. This Agreement shall automatically terminate at the end of the Period of Negotiation unless Developer and Executive Director have agreed upon a form of DDA acceptable to each as of said date, unless terminated earlier as provided in this Section 2, or unless extended as follows: 1. For sixty (60) days if a DDA has been prepared by Agency and executed by Developer, and has been submitted to Agency but has not yet been approved by the Agency Board; -5- 466886 8 001775 0005 4 29 2009-1 15 I'M 2. By up to one hundred eighty(180) days(in increments of not less than thirty (30) days each) if the major business terms have been agreed to and the Executive Director determines that further negotiations are likely to result in a written agreement; 3. For ninety(90) days if the Project has been submitted to the Planning Commission but additional time is necessary to complete processing by the Planning Commission and/or the City Council for final approval of the entitlements for the Project; 4. For any additional period reasonably necessary (i) to prepare, circulate, review, revise, re-circulate or certify any documentation issued under CEQA in connection with the approval of the DDA and/or the Project(including any new or revised documents necessary as a result of any settlement or judgment in a lawsuit challenging the environmental review for the DDA and/or the Project) and (ii) during the pendency of any action or lawsuit challenging any entitlements, actions or approvals (including, without limitation, environmental review) associated with the DDA and/or the Project; 5. For such time as a Party is unable to perform due to force majeure matters; and/or 6. By mutual agreement of the Parties(with the Executive Director having the authority to enter into such an agreement without seeking additional authorization from the Agency Board). B. Notwithstanding the Period of Negotiation, if(i) Developer is not negotiating diligently or in good faith or (ii) Developer has not complied with the deadlines of the Schedule of Performance, then, subject to the cure provisions of Section 5.D, Agency may thereafter terminate this Agreement upon five (5) days written notice to Developer following such uncured default. C, Notwithstanding the Period of Negotiation, Developer may terminate this Agreement by written notice to Agency if during the course of its investigations and evaluation of the Project, Developer determines in good faith thatthe Project is not feasible for any reason, including, without limitation, the geotechnical and/or environmental condition of the Site or the Project's inability to be reasonably financed. D. Upon Agency's negotiating team being prepared to recommend a DDA acceptable to Developer to the Agency Board for approval, Developer shall execute said DDA, and Agency's staff shall submit the proposed DDA to the Agency Board for approval Developer acknowledges that any DDA shall require approval of the Agency Board and hereby agrees that, upon submittal by Developer to Agency of its fully-executed DDA, Developer shall not withdraw such offer for a period of one hundred twenty (120) days following such submittal (provided that there shall have been no material adverse changes to the Project, including, without limitation, applicable land use regulations, title matters and/or the geotechnical condition of the Site). During said one hundred twenty(120)-day period, Agency shall (i) determine whether it desires to enter into such DDA and (ii) if it does so desire, then take all actions necessary to authorize the execution of and execute -6- 489996.8 00177500054292009-115 PM the DDA. If Agency has not approved the DDA by the end of such one hundred twenty (120) -day period, then the offer to enter into the DDA shall be deemed withdrawn- E. If this Agreement is terminated as provided in this Section 2, then neither Party shall have any liability hereunder following such termination except as otherwise expressly set forth in this Agreement. This Section 2.E shall survive any termination of this Agreement. F. The Executive Director shall review promptly and preliminarily approve Developer submittals identified in the Schedule of performance priorto proceeding to each following milestone. SECTION 3. DEVELOPER'S RESPONSIBILITIES. A. During the Period of Negotiation, Developer shall: 1, Cause to be prepared (or update any such studies which have already been prepared) (i) an ALTA survey, (ii)a preliminary grading and hydrologic study, (iii)a preliminary soils and geologic investigation and (iv) a phase 1 environmental assessment of the Site; 2. Prepare additional studies, reports and analyses, if any, that Developer shall deem reasonably necessary to determine the feasibility of the Project; 3. In accordance with the Schedule of Performance, submit a tentative subdivision map application for the Project, and such other related documents typically required by the City in support of said application; 4. Cooperate with Agency in Agency's management of the environmental review of the Project; and 5. Cooperate with Agency in Agency's preparation of an application for funding to CalHFA'S Residential Development Loan Program. B. Developer acknowledges and agrees that, as Developer: 1. It shall design and construct the Project; and 2. It shall have a continuing obligation to demonstrate to Agency, after written request, the financial capacity of Developer and its principals, capital partners,joint venturers and members, the willingness of each to make adequate funding available and the capability of Developer to perform its obligations under this Agreement and the proposed DDA until the completion of the Project. C. Developer acknowledges that the selection of Developerasthe developer of the Project is based in large part on the experience, qualifications and financial capacityof Developer and the constituent members of Developer's development team. Accordingly, -7- 4886868 001775.0005 4,292009-1151'M the principals of Developer and the members of the development team, ail as described in Developer's Proposal, shall remain substantially as set forth therein throughout the Period of Negotiation, except as modified with Agency's reasonable consent. Developer shall notify Agency in writing of any change in Developer's ownership or managers, and any change in the development team, including partners, joint venturers, negotiators and consultants. SECTION 4. AGENCY'S RESPONSIBILITIES. A. Negotiate Exclusively- Agency agrees that, during the Period of Negotiation and provided that Developer has not committed an uncured default of its obligations under this Agreement, Agency shall negotiate exclusively and in good faith with Developer with respect to the DDA and the development of the Site. During the Period of Negotiation, Agency shall not solicit, entertain or respond to offers or proposals from other parties concerning the Site. Developer acknowledges, however, that Agency may, from time to time, be contacted by other developers respecting the Site and that such contact is expressly permitted so long as Agency does not initiate such contact and Agency indicates to such other developers that Agency has executed this Agreement with Developer and that Agency is unable to discuss anything concerning these negotiations with Developer, disclose any information other than any Project-related information that is a disclosable public record, entertain or discuss any offer or proposal or negotiate with any other developer regarding the Site until the Period of Negotiation expires or this Agreement is terminated. B. Preparation of DDA. The Parties shall jointly prepare the proposed DDA, in connection with which each Party shall bear its own costs. C. Contract Authority. The Executive Director is authorized to enter into contracts on behalf of Agency for the purposes of planning, environmental review, appraisals and other such services for the Project without obtaining further authorization From the Agency Board- D. Confidentiality. Developer understands and agrees that Agency's negotiating team reserves the right at any time to reasonably request from Developer reasonable additional information to ascertain the depth of Developer's capability to develop the Project expeditiously. Agency's negotiating team shall provide a reasonable time in which Developer may obtain and submit to Agency such additional information, and Developer agrees to submit such additional information in a timely manner(which information may be redacted by Developer to omit trade secrets and confidential, proprietary and/or non- disclosable provisions). If Agency is required to defend an action under the California Public Records Act with regard to a request for disclosure of such a redacted document, then, if Developer requires Agency to oppose such disclosure request, Developer agrees to defend and indemnify Agency from all costs and expenses of such defense, including reasonable attorneys' fees of Agency or attorneys' fees awarded by a court arising out of such action. _g- 48888G.8 001775 0005 4 29 2008-1 15 PM E. Site Information. Agency shall promptly provide to Developer all currently existing plans, studies and other written information regarding the Site and in the possession of Agency to the extent not previously delivered to Developer. F. Processing. Agency shall cooperate with Developer in Developer's efforts to expedite the processing of its tentative subdivision map application, G. Application to Residential Development Loan Program. Agency shall prepare and submit an application to CaIHFA's Residential Development Loan Program in accordance with the Schedule of Performance. H. Recoverable Grant Agreement. Con current with the Parties'execution of this Agreement, Agency shall authorize execution of a Recoverable Grant Agreement by and between Agency and Developer intended to cover Developer's costs of developing and entitling the Site in the amount of Five Hundred Thirty Thousand Five Hundred Fifty-Five Dollars ($530,555) in accordance with the terms provided in the Recoverable Grant Agreement attached hereto as Exhibit"C" and incorporated herein by this reference. The DDA shall provide that said recoverable grant amount shall be credited to Agency's project grant as described in Developer's Proposal. SECTION 5. MISCELLANEOUS. A Brokerage Commission. The Parties hereby represent and acknowledge that neither Party has engaged a broker or finder to represent such Parties in connection with this Agreement. The Parties hereby each indemnify and hold the other free and harmless from and against any and all costs and liabilities including, without limitation, attorneys' fees, for causes of action or proceedings which may be instituted by any broker, agent or finder, licensed or otherwise, claiming through, under or by reason of the conduct of the indemnifying Party in connection with this Agreement. The foregoing representation and indemnity shall survive the termination of this Agreement. B. Successors and Assigns. This Agreement shall be binding upon and enforceable by the respective successors and assigns of the Parties. Without the prior written consent of Agency, Developer may not assign its rights or delegate its obligations hereunder; provided, however, that Developer shall have the right to assign its rights in and to this Agreement and/or the DDA to any entity in which Developer, or any Affiliate(as hereinafter defined)of Developer holds a direct or indirect interest and maintains an active role in the management of the affairs of such entity. Agency understands and agrees, however, that nothing in this Section 5.13 is intended to limit or impair Developer's abilityto finance the Project, including, without limitation, admitting investors into Developer. "Affiliate" means any person or entity in control of, under the control of, or in common control with Developer. C. Notices, Any notice, consent, approval or disapproval to be given or other document to be delivered by any Party to the other or others hereunder may be delivered in person to an officer of any Party, or may be delivered by Federal Express, other private _9_ d88Nx68 00)7750005 4 29 2008-1.isrm commercial delivery or courier service for next business day delivery, or may be deposited in the United States mail, duly certified or registered, return receipt requested, with postage prepaid, and addressed to the Party for whom Intended, as follows: If to Developer: ComDyn, LLC 2800 28'h St, Suite 206 Santa Monica, CA 90405 Attn: Mr. Loren Bloch Phone No.: (310) 399-9656 Fax No.: (310) 399-9777 With a copy to: Brown Winfield Canzoned Abram Inc. 300 S Grand Ave, 141h Floor Los Angeles, CA 90071 Attention: Bill Pham, Esq, Phone No.: (213) 687-2136 Fax No.: (213) 687-1736 If to Agency: Community Redevelopment Agency of the City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA, 92263 Attn: Executive Director Phone No.: (760) 323-8350 Fax No.: (760) 323-8207 Notice may also be given by facsimile transmission ("Fax") to any Party at the respective Fax number given above and marked 'RUSH - PLEASE DELIVER IMMEDIATELY'; provided, however, that receipt of such transmission shall be confirmed by follow-up notice within seventy-two (72) hours by another method authorized above. Any Party hereto may from time to time, by written notice to the other, designate a different address which shall be substituted for the one (1) above specified. Any notice shall be deemed served or delivered upon actual receipt or first attempted delivery (as shown by the records of the U.S. Postal Service or private delivery service) at the address listed above. D. Default. Neither Agency nor Developer shall be deemed to be in default of its respective obligations under this Agreement unless and until the non-defaulting Party shall deliver written notice of any alleged default which the defaulting Party fails to cure within thirty (30) days after delivery of such notice, and if such breach is capable of cure, but cannot reasonably be cured within such thirty(30)-day period, then within such longer period (not to exceed ninety (90) days from the delivery of the original notice), provided that the defaulting Party promptly undertakes to cure within the initial thirty(30)-day period and thereafter diligently prosecutes such cure to completion. -10- 488886 2 001775 0005 419.2008.P 15 PM E. Ownership of Documents. if the Period of Negotiation expires without execution of the DDA, then Developer shall, at the request of Agency and upon payment by Agency to Developer of the amount of the actual, out-of-pocket cost incurred by Developer therefor, transfer to Agency copies of any non-privileged and non-proprietary reports, studies, analyses, site plan layouts, development cost estimates and engineering studies regarding the proposed development and prepared during the Period of Negotiation, which copies shall become the property of Agency. Such transfer shall be made without any representation or warranty by Developer as to the accuracy or sufficiency of the contents of such documents and shall be made subject to the rights of the preparers of such documents including, without limitation, the copyright (if any) associated with such documents. F. Purpose of Contract. It is expressly understood and agreed by the Parties that this is an Agreement regarding the conduct of contract negotiations only and does not convey any interest in the Site whatsoever. It is further agreed and understood that this Agreement does not imply any obligation on the part of either Party to enter into any agreement that may result from negotiations contemplated herein. Nevertheless, Agency would not have entered into this Agreement if Developer's proposal did not fulfill Agency's objectives under the Redevelopment Plan and have merit, as represented. G. Amendment. This Agreement may only be amended by a document in writing executed by each of the Parties. H. Authority. Each of the persons executing this Agreement on behalf of a Party warrants that (1) such Party is duly organized and existing, (ii) he or she is duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement and (iv) the entering into this Agreement does not violate any provision of any other agreement to which said Party is bound. I. Governing Law; Dis ute Resolution. This Agreement shall be interpreted in accordance with California law, without giving effect to choice of law provisions. The Parties agree that in the event of litigation, exclusive venue shall be in Riverside County, California. In the event of any dispute, controversy or claim arising between the Parties in connection with or relating to this Agreement, the Parties shall make good faith efforts to resolve such dispute through negotiation and, if the Parties so elect, then non-binding mediation, prior to initiating anyjudicial proceeding to enforce theterms of this Agreement. The Parties shall bear their own costs, including attorneys' fees, in the dispute resolution process, including anyjudicial proceedings. J. Superseded by DDA, Following mutual execution by the Parties of a DDA, this Agreement shall be of no further force or effect, except as may be set forth in this Agreement. In the event of any conflict between the provisions of this Agreement and any DDA approved and executed by the Parties, the provisions of the DDA shall for all purposes prevail. -11- 499MM 001775 0005 4,29.2008-1.15 PM K. No Duty. Notwithstanding any other provision of this Agreement, neither Party shall have any obligation or duty under this Agreement or any liability whatsoever in the event that the Parties fail to execute a DDA, except as may be set forth in this Agreement. L. Non-liability of Representatives. No member, official, representative, director, staff member, attorney or employee of either Party shall be personally liable to the other Party or any successor in interest in the event of any default or breach by his or her respective Party or for any amount which may become due to the other Party or to its successor with respect to this Agreement, the Project or the Site. M. DDA Approval. If the negotiations hereunder culminate in a DDA, then such DDA shall be considered for approval by the Agency Board only after all required public hearings have been held and after compliance with all applicable laws and ordinances. The concurrence of Agency negotiators with the terms and provisions of a proposed DDA under any provisions of this Agreement shall not be construed or interpreted as the Agency Board approving or accepting such terns. Such concurrence shall be viewed as nothing more than the willingness of Agency negotiators to inform the Agency Board that Agency negotiators recommend approval of such terms. A DDA shall only become effective after it has been considered and approved by the Agency Board, N. Headings. The section headings in this Agreement are for convenience only and do not explain, modify or add to the meaning of this Agreement. O. Severability. The provisions of this Agreement are severable. The invalidity or unenforceability of any provision in this Agreement shall not affect the other provisions. P. Interpretation. This Agreement is the result of the combined efforts of the Parties. Should any provision be found to be ambiguous, then the ambiguity shall not be resolved by construing this Agreement in favor of or against any Party, but by construing the terms according to their generally accepted meanings. Q. Integration. This Agreement constitutes the entire agreement of the Parties hereto with respect to the subject matter hereof. There are no agreements or understandings between the Parties and no representations by either Partyto the other as an inducement to enter into this Agreement, except as expressly set forth herein. All prior negotiations between the Parties are superseded by this Agreement. R. Attorneys'-Fees. If any Party should bring any legal action or proceeding relating to this Agreement (including, without limitation, any action or proceeding to interpret or enforce any provision hereof), then the Party in whose favor a judgment or decision is rendered shall be entitled to recover reasonable attorneys'fees and expenses from the other Party to the controversy. 486886.9 001775.0005 4 29 2008.1 15 FM S. Counterparts. The Parties may execute this Agreement in counterparts, each of which when signed and delivered shall be deemed an original, and all of which when taken together shall constitute but one (1) and the same instrument. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day first above written. "AGENCY" COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic Executive Director ATTEST: dxge! y-Secretrp la ., AP D ASS TO F M: Agency Nunsel "DEVELOPER„ COMDYN, LLC, a California limited liability company By: Nam Its: H -13- 488886.8 001775.0005 4.29 2008-1 15 PM Exhibit "Al" Legal Description of the Site That certain parcel located in the City of Palm Springs, County of Riverside, State of California, bearing APN 501-031-028. P A L M 5 P R Z N C s, c•� f. r.F o B a Y A 3.64 acres . � Y h/r�t���i'p..e4,�+�,"a�c�Gn�✓C71�1y/�r%1 �;�� � �� 1 L A �,wa�5ryro. r� n • ° { N .kA,r �_ __ +"k'.�' � (�( �,d ....�/. irR•.."1";� xppie�n�J�..r i,�.��il.`^YA.r?, r —��.../ ti.� Y., 'L � .......�I____�..�.��.--........dam �� ---•---.-.-- �_. I Exhibit "13 Schedule of Performance Agency completes and submits an application to CalHFA's Residential Development Loan Program 5/31108 Agency enters into contract with consulting firm to undertake environmental assessment 6/14/08 Developer enters into contracts with consulting firm(s) for ALTA survey, preliminary soils and geologic investigation, preliminary grading and hydrologic analysis, and phase 1 environmental assessment 6/14/08 Developer's studies and reports completed 7/31/08 Developer and Agency staff execute MOU (Term Sheet) for DDA 7/31/08 Developer completes physical due diligence and notifies Agency whether Developer approves physical condition of Site 8/15/08 Developer applies for entitlements 8/15/08 Developer and Agency complete execution ready DDA 3/15/09 Environmental determination approved by Agency Board 4/15109 Developer's Tentative map and DDA approved by City Council 5/15/09 Exhibit "C" Recoverable Grant Agreement [See attached page(s)] EXHIBIT C GRANT AGREEMENT BETWEEN THE, COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS AND COMDYN, LLC THIS GRANT AGREEMENT ("Agreement"), made and entered into this 21st day of May, 2008, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic ("Agency"), and COMDYN, LLC, a California limited liability company("Grantee"). WHEREAS, Agency des+res to redevelop that certain property located at the southeast comer of Indian Canyon Avenue and San Rafael, consisting of approximately three and sixty- three one hundredths (3.63) acres currently owned by Agency (the "Property"), as more particularly described and depicted on EXHIBIT C-1 attached hereto and incorporated herein by this reference; WHEREAS, Agency has entered into an Exclusive Agreement to Negotiate ("ENA") with Grantee for the development of a fifty-two (52) unit moderate income condominium project on the Property(the "Prgject"); WHEREAS, Agency and Grantee acknowledged and agreed that no project at the Property which includes affordable housing will likely be financially feasible without public assistance, which assistance may be in the form of direct grants, loans, subsidies, or other public assistance programs. WHEREAS, as Grantee has requested for and the Agency agreed to provide to Grantee, as set forth in the ENA, a grant in the amount of Five Hundred Thirty Thousand Five Hundred Fifty-Five Dollars (S530,555) ("Grant Amount") for cost and expenses related to developing and entitling the Property, which costs and expenses are set forth in more detail on EXHIBIT C- 2 attached hereto; WHEREAS, Agency is prepared to fiord the grant described in this Agreement, subject to the terms and conditions set forth below, and Grantee is prepared to accept such grant and perform its obligations under this Agreement. NOW THEREFORE, the Agency and Grantee agree as follows: 1. GRANT Agency hereby agrees to provide to Grantee the Grant Amount (the "Grant") for cost and expenses set forth on EXHIBIT C-2 and Grantee accepts the Grant subject to the terms and conditions set forth in this Agreement. 1 ,192995 3 001775 0005 9/12/2002-109 PM 2. DESCRIPTION OIL USE OF GRANT (a) The Grant shall he used exclusively by Grantee for the payment for the work, services, materials and equipment described on EXHIBIT C-2 attached hereto all of which must be directly related to the Project. (b) Grantee shall be responsible for compliance with all applicable laws regarding the use of the Grant and the Project. 3. GRANT PAYMENT (a) Payment Schedule. Grantee shall submit monthly invoices not later than the 10th day of each month for expenses set forth on EXHIBIT A incurred in the previous month, including the "Developer Overhead" amount (which overhead is prorated over a ten (10) month period). Developer must document all third party expenses with third party invoices. All disbursements shall be made in arrears meaning after the work requested to be paid for in the disbursement request has been performed or delivered. It is intended that disbursements shall occur not more frequently than once each month. (b) Conditions to Disbursement. Grantee shall not be in default of any of its responsibilities as set forth in Section 3 of the ENA prior to the disbursement of any Grant funds. The Agency may request additional information or clarifications with regard to the any disbursement and Grantee shall respond to such requests to the Agency's reasonable satisfaction before any such disbursement shall be made. (c) Term- The activity funded under the term of this Agreement shall occur between the date hereof and the termination of the ENA, A. REPRESENTATION, WARRANTIES AND COVENANTS OF GRANTEE Grantee makes the following representations, warranties and covenants to Agency as of the date hereof and makes then continuously through out the term of this Agreement: (a) Location of Project: The Property and the majority of the work performed regarding the Project will be performed and constructed within the boundaries of the City of Palm Springs. (b) Project Related Ex eenses. The funds requested are for reimbursement of funds expended by Grantee which are directly related to the Project and not for a different project. (c) Authority. Grantee is and the person signing this Agreement on behalf of Grantee is duly authorized and has the necessary power to enter into this Agreement as a binding obligation of Grantee. 2 492995.3 001775.0005 9/12/2008-1.091'M 5. RELATIONSHIP OF THE PARTIES The relationship of the parties to this Agreement shall be that of principal/independent contractor and that in no event shall Grantee be considered an officer, agent, servant, employee, partner, or joint venturer of Agency. The Grantee shall be solely responsible for any workers compensation insurance, withholding taxes, unemployment insurance, and any other employer obligations associated with the described work. G. TERMINATION BY AGENCY The Agency may terminate the Grant for "Cause" by providing a thirty (30) day written notice of default to Grantee ("Notice of Default"). In the event Grantee does not cure such default within thirty (30) days after its receipt of the Notice of Default, this Agreement shall be deemed terminated. In the event of such termination, Agency (i) may reject payment of any outstanding Grant funds to the extent that the Agency determines such expenditure to be in violation of the terms and conditions of this Agreement and (h) may request that Grantee refunds, in full or in part, the Grant amounts previously disbursed to Grantee under this Agreement. "Cause" shall mean misapplication or misuse of Grant funds, failure to timely perform Grantee's obligations set forth in Section 3 of the ENA and/or any material breach of any ofthe terms or conditions of this Agreement. 7. ACCEPTANCE OF FINAL PAYMENT CONSTITUTES RELEASE The acceptance by Grantee of the final Grant payment and acceptance by the Agency of a final payment request prepared by Grantee made under this Agreement shall operate as and be a general release of the Agency from any and all claims and liabilities for compensation to for anything done, furnished, or relating to such Grantee's work or services. Approval or payment by the Agency shall not constitute, nor be deemed, to be an assumption of liability by the Agency for defect or error in the work prepared by Grantee, its volunteers, employees, subcontractors, or agents. 8. RE'VIEW OF RECORDS/COST RECOVERY Grantee shall keep and maintain regular books and records regarding the Grant and the Project including but not limited to, financial books and records of all expenses incurred with regard to the items set forth on EX141BIT C-2; and causing all contractors and other vendors involved with the work set forth on EXHIBIT C-2 to prepare reasonably complete written contracts and invoices for all such, which shall be kept and maintained by Grantee; if applicable, obtain lien releases for all work which is paid for and which may be subject to the mechanics' lien or design professionals lien laws. At any tirne during normal business hours and as often as it may deem necessary, the Grantee shall make available to a representative of the Agency for examination of all its records with respect to all matters covered by this Agreement and will permit Agency to audit, examine and/or reproduce such records. Grantee will retain such financial records, invoices, and bills for at least one year after termination or final payment under this Agreement. If the Agency reasonably determines that any Grant funds have been expended improperly or otherwise in violation of the provisions of this Agreement, Grantee shall repay such amounts within 30 days after demand has been made therefore by the Agency. 3 492995.3 001775.0005 9/12/2006.109 PM 9. WAIVER; REMEDIES CUMULATIVE Failure by Agency to insist upon the strict performance of any of the provisions of this Agreement by Grantee, irrespective of the length of Lime for which such failure continues, shall not constitute a waiver of Agency's right to demand strict compliance by Grantee in the future. No waiver by Agency of a default or breach of the Grantee shall be effective or binding upon Agency unless made in writing by Agency, and no such waiver shall be implied from any omissions by Agency to take any action with respect to such default or breach. No express written waiver of a specified default or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified. All of the remedies permitted or available to Agency under this Agreement, or at law or in equity, shall be cumulative and alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right of remedy. 10. CONSTRUCTION OF LANGUAGE OF AGREEMENT The provisions o f this Agreement shall be construed as a whole according to its common meaning of purpose of providing a public benefit and not strictly for or against any party. It shall be construed consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neutral genders or vice versa. The captions or headings in this Agreement are for convenience only and in no other way define, limit or describe the scope or intent of any provision or section of the Agreement. 11. MITIGATION OF DAMAGES In all situations arising out of this Agreement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party. 12. NONDISCRIMINATION (a) The Grantee shall comply with the Federal Americans with Disability Act, Public Law 101-336, and observe the disability discrimination prohibitions of such laws in the performance of the work required under this Agreement. (b) 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, national origin or ancestry in connection with the Project, nor shall Grantee allow others who are engaged by Grantee to work on the Project to establish or pen-nit any such practice or practices of discrimination or segregation with respect to the Project and work associated therewith. 4 492995 3 001775 0005 9/12/2008-1'091'M 13. ENTIRE AGREEMENT BETWEEN PARTIES Except for Grantee's proposals and submitted representations for obtaining this Agreement, this Agreement supersedes any other agreements, either oral or in writing, between the parties hereto with respect to the rendering of services, and contains all of the covenants and agreements between the parties with respect to said services. Any modifications of this Agreement will be effective only if it is in writing and signed by the party to be charged. 14. NOTICES Any notice required to be given hereunder may be delivered in person to an officer of any party, or may be delivered by Federal Express, other private commercial delivery or courier service for next business day delivery, or may be deposited in the United States mail, duly certified or registered, return receipt requested, with postage prepaid, and addressed to the party for whore intended, as follows: If to Grantee: ComDyn, LLC 2800 28"' St, Suite 206 Santa Monica, CA 90405 Attn: Nir. Loren Bloch Phone No,: (310) 399-9555 Fax No.: (310) 399-9777 With a copy to: Brown Winfield Canzoneri Abram Inc. 300 S Grand Ave, 14"'Floor Los Angeles, CA 90071 Attention: Bill Pham, Esq. Phone No.: (213) 687-2136 Fax No.: (213) 687-1736 If to Agency: Community Redevelopment Agency of the City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA, 92263 Attn: Executive Director Phone No.: (760) 323-8350 Fax No.: (760) 323-8207 15. GENERAL PROVISIONS (a) Governing Law. This Agreement, and the rights and obligations of the parties, shall be governed and interpreted in accordance with the laws of the State of California. (b) Partial Invalidity if any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in fiill force without being impaired or invalidated in any way. 5 492995 3 001775 0005 9/12/2008-1 09 PM (c) Conflict of Interests. No member, official or employee of Agency shall have any personal interest, direct or indirect, in this Agreement nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested. (d) Warranty Against _Payment of Consideration for Agreement. Grantee warrants that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement. (e) Non-liability of Agency Officials and Employees. No member, official or employee of Agency or of Grantee shall be personally liable to the other party or any successor in interest, in the event of any default or breach by Agency or Grantee for any amount which may become due to Grantee or Agency or its successor, or on any obligations under the terms of this Agreement. (0 Extension of Time ofPerfonnance. Agency will reasonably consider written requests by Grantee for extension of time for performance of its obligations under this Agreement and the ENA, (g) Agency Asprovals,' No Partnership. Agency neither undertakes nor assumes nor will have any responsibility or duty to Grantee or to any third party to review, inspect, supervise, pass judgment upon or inform Grantee or any third party of any matter in connection with the Project, whether with respect to the quality, adequacy or suitability of the plans and specifications, any labor, service, equipment or material furnished to the Property, any person furnishing the same, or otherwise. Grantee and all third parties shall rely upon its or their own judgment with respect to such matters, and any review, inspection, supervision, exercise of judgment or information supplied to Grantee or to any third party by Agency in connection with such matters and neither Grantee (except for the purposes set forth in this Agreement) nor any third party is entitled to rely thereon. This Agreement is for the sole and exclusive use and benefit of Agency and Grantee and their respective permitted successors and assigns and may not be enforced, nor relied upon, by any person other than Agency and Grantee. All conditions of the obligations of Agency hereunder, including the obligation to authorize disbursements of the Grant, are imposed solely and exclusively for the benefit of Agency, its successors and assigns, and no other person shall have standing to require satisfaction of such conditions or be entitled to assume that Agency will refuse to authorize disbursements in the absence of strict compliance with any or all of such conditions, and no other person shall, under any circumstances, be, deemed to be a beneficiary of such conditions, any and all o f which may be freely waived in whole or in part by Agency at any time in Agency's sole discretion. (h) Time of Acceptance of Agreement by Agency. This Agreement, when executed by Grantee and delivered to Agency, must be authorized, executed and delivered by Agency within ten (]0) days after the date of signature by Grantee, or this Agreement may be terminated by Grantee on written notice to Agency. 6 492995 3 001775 0005 9/12/2009-1,091'M (i) Ownership of Documents. If the negotiations between Agency and Grantee are terminated without execution of a disposition and development agreement ("DDA') with respect to the Property, then Grantee shall, at the request of Agency transfer to Agency copies of the work products, studies, reports and materials described on EXHIBIT C-2 with respect to which the Agency has disbursed Grant funds to Grantee for reimbursement of costs and expenses related thereto, which copies shall become the property of Agency and, concurrent therewith, Grantee shall assign to the Agency all Grantee's rights, title and interest in those materials. Such transfer and assignment shall be made without any representation or warranty by Grantee as to the accuracy or sufficiency of the contents of such materials and shall be made subject to all third party rights in such materials, including, without limitation, any copyright or similar intellectual property right that may be held by a third party associated with such materials. This Agreement has been executed by the, parties effective on the date and year first above written. COMMUNITY REDEVELOPMENT ATTEST: AGENCY OF THE CITY OF PALM SPRINGS 1 j +,rI APP� AS TO F p II A enc xittorney :;;: .,;Y ;`;r; , `11, i si_k 'a,- , .•?"f J ',-i ': :-, APPROVED AS TO ADMI ISTRATiON: 'v7 w, // Agen y M�n ger GRANTEE: COMDYN, LLC By. Name: �1 Its: 7 492995 3 001775 0005 9/12/2009.1 09 PM EXHIBIT "C-1" - Description of Property That certain parcel located in the City of Palm Sprinbs, County of Riverside, State of California, bearing APN 501-031-028. 8 492993.3 001775.0005 9/12/2009-1,09 PM EXHIBIT "C-2" COMDYN, LLC PALM SPRINGS PREDEVELOPMENT GRANT BUDGET May 21, 2008 1500 PREDEVELOPMENT FEES Pre-Application $810 Mitigated Negative Declaration $6,355 PC& CC Notification Charges $845 City Attorney Review $3,500 Development Agreement $5,814 Architectural Approval $1,769 Tentative Tract Map $9,198 TOTAL PREDEVELOPMENT FEES $28,290 2500/5000 PREDEVELOPMENT Architect-Conceptual/Schematic Studies S40,000 Landscape Architect- Conceptual/Schematic Studies $15,000 Civil - Conceptual/Schematic Studies $50,000 Graphics Consultant $10,000 Color Consultant $15,000 Sustainability Consulting $7,000 Blueprints/Delivery $15,000 Legal $75,000 TOTAL PREDEVELOPMENT $227,000 DEVELOPER OVERHEAD $250,000 CONTINGENCY $26,265 TOTAL $530,555 J 492995.3 001775 0005 9M/2008-1 09 PM