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05220 - OASI GROUP NEGOTIATE 7.7 ACRE CITY-OWNED PARCEL TO DEVELOP WESTIN HOTEL/MONDRIAN
DOCUMENT TRACKING Page: 9 Report: Expired Documents Summary March 4, 2008 Condition: Oldest Date= / /, Groups= COMMUNITY& ECONOMIC, ALL Services, ALL XREFs Document# Description Approval Date Expiration Date Closed Date A5186 voo / operational expenses CSDG 04/07/2004 06/30/2005 Company Name: Fair Housing Council of Riverside County ® Address: Group: COMMUNITY& ECONOMIC � J Service: C Process f^I xRef: COMMUNITY& ECONOMIC V' Ins. Status: No Certificate on file. Vq �s 4J" A5220 Exclusive agreement to negotiate for city-owned property for up-scale .- 01/18/2006 07/01/2007 ` Company Name: Oasi Group LLC Address: 100 S Sunrise Way, No. 498, Palm Springs, CA 92262 Phone: (310) $77-3110 Fax: (310)476-9216 Group; COMMUNITY& ECONOMIC Service: In File xRef: JOHN RAYMOND 760 323-8228 � Ins. Status: Certificate and Policies are OK ++\ A5269 t Fair Housing Program 04/12/2006 06/30/2007 V , Company Name: Fair Housing Council of Riverside 01, Address: P O Box 1068, Riverside, CA 92502 Group: COMMUNITY& ECONOMIC J\ Service: In File xRef; DALE COOK 760 323-8198 Ins. Status: Certificate and Policies are OK C * * *" END OF REPORT * ° * * • " P 4 �"O� ; AMENDMENT NO. 2 TO THE EXCLUSIVE AGREEMENT TO NEGOTIATE The Oasi Group, LLC THIS AMENDMENT NO. 2 TO THE EXCLUSIVE AGREEMENT TO NEGOTIATE ("Agreement") is made this 29 day of 2007, by and between THE CITY OF PALM SPRINGS (" ity"), and THE OASI GROUP, LLC, a California Limited Liability Corporation ("Developer"). RECITALS A. On February 23, 2006 the City and Developer entered into an Exclusive Agreement to Negotiate ("ENA") for the purposes of negotiating a Disposition and Development Agreement for the sale of City property generally described as the Convention Center parking lots and the development of a Group Meeting Hotel and condominiums on the Parcel. B. Developer has proceeded in good faith in the planning of the project and the acquisition of an adjoining property for inclusion in the project- C. Developer has requested additional time to complete the required milestones identified in the Schedule of Performance and an extension of the period of negotiation in which to complete all tasks identified in the ENA and the Schedule of Performance; such changes were a result of the Developer's redesign of the project to be able to accommodate public parking on the site. D. The ENA provides for extensions by the mutual agreement of the parties (Section 2.A.3). E. The parties amended the ENA in Amendment No. 1 approved February 21, 2007, to extend the period of time to July 1, 2007. F. City agrees that an extension of time is warranted and in the best interests of the City for the orderly completion of the required milestones and the negotiation of a disposition and development agreement. NOW, THEREFORE, and in consideration of the foregoing Recitals, City and Developer agree as follows: AGREEMENT 1. The foregoing Recitals are true and correct. 2. In SECTION 1. NATURE OF NEGOTIATIONS, Subsection A., Good Faith, the sentence that reads "A 'Westin Hotel" is hereby agreed to meet the requirements of this Agreement for the Resort" shall be amended to read "A 'Mondrian Hotel,' a brand of the Morgans Hotel Group, is hereby agreed to be the brand of hotel that meets the requirements of this Agreement for the Resort." 3- The first sentence of Section 2.A of the ENA shall be amended to read: "The term of this Agreement shall be for the period of time from February 23, 2006 to December 31, 2007 (the 'Period of Negotiation") 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." 4. All other terms and conditions of the original ENA shall remain unchanged and in full force and effect. 5. The persons executing this Amendment on behalf of the Parties warrant that they are duly authorized to execute this Amendment on behalf of said parties and that by doing so executing this Amendment the parties hereto are formally bound to the provisions of this Amendment. "CITY" THE CITY OF PALM SPRINGS, a Charter City and municipal corporation David H. Ready, Esq.j� F.D-, City Manager TTEST: APPROVED SY CITY COUNCIL City Clerk Q�/nfs�/ w© 7 AP P D AS SPTO FORM: City Atforney [SIGNATURES CONTINUED ON NEXT PAGE] -2- "DEVELOPER" THE OAS[ GROUP, LLC, a California Limited Liability corporation (Check One: _individual, _partnership, _corporation) SignaC . Print Name:�- Qk k- � Print Title: CI Mailing Address: A &j JjmS ( C4"\- 2-2-( V V (Corporations require two signatures; one from each of the following: (A) Chairman of Board, President, any Vice President; AND (B) Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer.) _ AMENDMENT NO. 1 TO THE EXCLUSIVE AGREEMENT TO NEGOTIATE The Oasi Group, LLC THIS AMENDMENT NO. 1 TO THE EXCLUSIVE AGREEMENT TO NEGOTIATE ("Agreement') is made this aC-i t day of (I le—' 2007, by and between THE CITY OF PALM SPRINGS ("City"), and THE OASI GROUP, LLC, a California Limited Liability Corporation ("Developer"). RECITALS A. On February 23, 2006 the City and Developer entered into an Exclusive Agreement to Negotiate ("ENA") for the purposes of negotiating a Disposition and Development Agreement for the sale of City property generally described as the Convention Center parking lots and the development of a Group Meeting Hotel and condominiums on the Parcel. B. Developer has proceeded in good faith in the planning of the project and the acquisition of an adjoining property for inclusion in the project. C. Developer has requested additional time to complete the required milestones identified in the Schedule of Performance and an extension of the period of negotiation in which to complete all tasks identified in the ENA and the Schedule of Performance; such changes were a result of the Developer's redesign of the project to be able to accommodate public parking on the site. D. The ENA provides for extensions by the mutual agreement of the parties (Section 2.A.3). E. City agrees that an extension of time is warranted and in the best interests of the City for the orderly completion of the required milestones and the negotiation of a disposition and development agreement. NOW, THEREFORE, and in consideration of the foregoing Recitals, City and Developer agree as follows: AGREEMENT 1. The foregoing Recitals are true and correct. 2. Exhibit B to the ENA is amended to read as provided in the document labeled "Exhibit B" to this First Amendment and milestones provided therein shall be deemed the milestones for the ENA, 3. The first sentence of Section 2.A of the ENA shall be amended to read: "The term of this Agreement shall be for the period of time from February 23, 2006 to July 1, 2007 (the "Period of Negotiation") and it is the intent of the Parties to + b y negotiate and prepare definitive documentation reflecting the transaction for execution and delivery within such Period of Negotiation." 4. All other terms and conditions of the original ENA shall remain unchanged and in full force and effect. 5. The persons executing this Amendment on behalf of the Parties warrant that they are duly authorized to execute this Amendment on behalf of said parties and that by doing so executing this Amendment the parties hereto are formally bound to the provisions of this Amendment. "CITY" THE CITY OF PALM SPRINGS, a Charter City and municipal corporation Davide• h.D., City Manager AT-EST: . APPROVED BY CITY COUNCIL Clerk A PP I/ED A,S�TO FO r / City Attoiney [SIGNATURES CONTINUED ON NEXT PAGE] -2- "DEVELOPER" THE OAS] GROUP, LLC, a California Limited Liability corporation (Check One: _individual, partnership, `corporation) [NOTARIZED] Signatu Print Name: L-&Lk�tk M)5Q) Print Title: rude/ Phi APS44 [NOTARIZED] Signature Print Name: Print Title: Mailing Address: (Corporations require two signatures; one from each of the following: (A) Chairman of Board, President, any Vice President; AND (B) Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer.) [END OF SIGNATURES / NOTARY JURAT(S) FOLLOW] -3- State of California ) )Ss. County of Riverside ) On June 20, 2007 before me, Carrie I2ovney._NotaryPublic _ Datc Namc and Til le of Officer personally appeared ---------------------------------------Lauri Mbbv------------------------------------------------ , Namc(s)of Signer(c) CARRIE ROvNEy ■proved to me on the basis of satisfacrory evidence Commiulon# 164a563 rdliil� Notary public_Cpptgntq to be the person(s)whose name(s)is/are subscribed to the Rlvenlae Country within. instrument and aclmowled ed to me that. MVCorrvrl ��Mm26'2u1 he/she/t3icq executed the same in iris/h r/their authorized capaeity(ic ,and than by iris/her/their sia atures(s)on the instrument the person(sj, or the entity upon behalf of which the person(s)acted, executed the instrument. WITNESS my hand and official seal �1t�1/,h[9 ��t�UU"IR.VI r Signature of-Notary Public • J EXHIBIT"B" ENA Milestones/Schedule ENA Terms Negotiated and Executed 2/27/06 Enter into contract with consulting firm to undertake Environmental assessment and perform planning services 3/10/06 Commence appraisal of property 3/10/06 Appraisal completed and value accepted by Parties 4/15106 Submittal of Site Plan, Project Description, Feasibility Analysis, and Evidence of Acquired Property 7/30/06 Commence CEQA review process 7/30/06 Letter of Commitment from Starwood/Approval by Committee 9/30/06 Submittal of Entitlement Applications with City 10/30/06 Commence Negotiation of Term Sheet 12/1/06 Complete Negotiation of Term Sheet 12/31/06 Complete CEQA Process 1/15/07 Complete Negotiation of DDA 12/15/06 Complete City Entitlement Process and Agency Approves DDA 7/1/07 Oasi Group Negotiate to develop Westin Hotel A5220 Res 21497, 01-18-06 EXCLUSIVE AGREEMENT TO NEGOTIATE The Oasi Group THIS EXCLUSIVE AGREEMENT TO NEGOTIATE ("Agreement") is made this day of c r 2006, by and between THE CITY OF PALM SPRINGS ("City"), and THE OASI GROUP, LLC, a California Limited Liability Corporation ("Developer"). The City and the Developer may sometimes be referred to individually as "Parry' and collectively as the "Parties." RECITALS The Parties entered into this Agreement on the basis of the following facts, understandings, and intentions: A. The City is a Charter City and municipal corporation exercising governmental functions and powers and organized and existing under the Law of the State of California. The City has activated, formed, and organized the Community Redevelopment Agency of the City of Palm Springs(the"Agency") pursuant to the Community Redevelopment Law of the State of California (Health and Safety Code Sections 33000, et seq.) B. The City desires to implement its adopted plans and policies, including the Amended and Restated Redevelopment Plan for Merged Project Area # 2, formerly the Tahquitz Andreas Redevelopment Project Area (the "Redevelopment Plan"), by considering and evaluating the feasibility of developing an upscale quality hotel and group meeting resort property (the "Resort') at the northeast corner of Calle Alvarado and Amado Road, consisting of approximately ten (10) acres currently owned by the City and used for Convention Center parking (the"Site")that could further the goals of the City and the Agency in the restoration and rehabilitation of private and public properties, elimination of blight, the renewal and enhancement of a vibrant commercial and tourist core near the City's downtown area, and ensuring the availability of conference and hotel uses near the City's Convention Center. The Legal Description of the Site is contained on Exhibit"Al"to this Agreement and the Site is depicted on Exhibit "A2" to this Agreement. C. In June, 2005,the Agency issued that certain Request For Qualifications(the "RFQ") seeking a developer for the nearby Prairie Schooner Site. The Developer responded to the RFQ with a submittal dated June 30,2005, and made a presentation and answers to questions of the City Council acting in its capacity as the Agency Board of Directors at a . public meeting on October 5, 2005 (collectively, the "Developer's Proposal"). The City Council directed staff at that meeting to work with Developer in identifying an alternative Site that met the requirements in the Developer's Proposal. D. The Developer desires to construct a Resort and condominium development (the "Project") at the Site or on a larger property consisting of the Site and additional property adjacent to the She(the"Adjacent Property")the Developer may acquire prior to the milestone date specified in the Schedule to this Agreement(the Site and the Adjacent Property shall be collectively referred to as the "Extended Site"). The land that can be included in the Adjacent Property is depicted on Exhibit A2 to this Agreement. 750375.03/OC o�pR),�,,,{��;�+'N�'��^ApL B�,I DI p( qy i E. The City and Developer 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 the Developer's Proposal, including,without limitation, the terms and conditions of a term sheet and an Agreement for Purchase, Sale, and Development of Real Property("Purchase Agreement")with respect to the Site or, if the Developer is successful in acquiring any portion of the Adjacent Property, the Extended Site. The Purchase Agreement, if agreed upon and executed, will specify the rights, obligations, and method of participation of the Parties with respect to the sale by the City to the Developer of the Site and development of the Site or the Extended Site by the Developer. NOW, THEREFORE, and in consideration of the mutual covenants hereinafter contained, it is mutually agreed upon by the parties as follows: SECTION 1 NATURE OF NEGOTIATIONS. A. Good Faith. The City and the Developer agree that for the period set forth in Section 2 herein they will negotiate diligently and in good faith to prepare and enter into a Purchase Agreement consistent with the provisions of this Agreement for the development of an upper upscale group meeting hotel on the Site specified herein. In the event the Developer acquires additional property adjacent to the Site, as described in Subsection B below, the City and the Developer agree that the subject of the negotiation shall be an upper upscale group meeting hotel on the Extended Site, consisting of the Site and any adjacent property the Developer acquires. A"Westin Hotel" is hereby agreed to meet the requirements of this Agreement for the Resort.The development will be subject to all rules, regulations, standards, and criteria set forth in the Redevelopment Plan,the City's General Plan, and Section 14 Master 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 the City shall not market the Site to other interested parties. The Parties agree to negotiate diligently and in good faith and exclusively with each other and to work together to negotiate the details of a term sheet upon which the terms and conditions of the Purchase Agreement will be based (the "Term Sheef'). B. Site. The Project shall be located upon the Site. The Site may be expanded to include the Adjacent Property shown on Exhibit"A2" to this Agreement. During the Period of Negotiation,the Developer and City shall discuss an expanded Project to include residential, hotel, retail, or entertainment uses on the Extended Site, but only if the Developer acquires all or a portion of the Adjacent Property. The Developer shall be responsible for conducting the negotiations with the property owners of the Adjacent Property, subject to the terms of Subsection D below. To the extent one (1)or more legal parcels consisting of the Adjacent Property have been acquired or are under contract to be purchased by Developer on or before October 1, 2006, the Developer and the City have mutually agreed to expand the Project to include the Adjacent Property, and such legal parcel(s) shall be deemed to constitute a portion of the Extended Site, as well as part of the Project. C. Initial Submittals for the Project. On or before October 1, 2006, the Developer shall generate the necessary analysis, plans, and studies to be able to fully describe the material aspects of the proposed Development on the Site or the Extended Site. This information will include a "Site Plan," a "Project Description," "Feasibility Analysis," a "Letter of Commitment," and, if the Developer proposes an Extended Site development, "Evidence"that the Developer has acquired or is under contract to acquire one or more of the parcels that make up the Adjacent Property. The submittal shall be in sufficient detail to reasonably enable the Parties to be able to evaluate and determine the feasibility of the Project and to assure the Parties that the Development Planning Process can be completed and that the Term Sheet can be negotiated. D. Financial Provisions. The Developer is responsible for the acquisition of the Site, including any of the Adjacent Property, and the financing and construction of all improvements upon the Site. The identification and scope of public improvements for the Development shall be based upon the results of the CEQA analysis for the Project. Without assistance from the City, Developer shall pay for all such public improvements and shall also pay all fees of the City of Palm Springs and any other government entity with review authority over the Project as may be agreed to in the Purchase Agreement. Upon the successful negotiation of the Purchase Agreement, that portion of the Site owned by the City shall be conveyed to the Developer at fair market value based on an MAI appraisal in accordance with the requirements California Health and Safety Code Section 33433 (whatever Government Code Section that pertains to City disposition of land). The City shall commission such appraisal, the cost of which shall be paid from Cost Recovery Deposit described in Section 3.A.4. E. Schedule. A schedule for the completion of the Developer's and City's respective obligations pursuant to this Agreement (the "Schedule") is attached to this Agreement as Exhibit B. The Purchase Agreement shall contain a separate Schedule of Performance apart from the Schedule. During the Period of Negotiation, the City and Developer shall agree on an itemized schedule for the Purchase Agreement process. City and Developer shall meet semi-monthly in order to review Developer's and City's progress and to allow the parties to comment upon the parties' respective efforts. City and Developer agree to reasonably consider adjustments to the Schedule and the Period of Negotiation for delays caused by factors beyond the control of City and the Developer. In this regard, it is agreed and acknowledged that as of the date of this Agreement the precise scope of the Project is subject to numerous factors beyond the control of the parties, including, without limitation, the ability of Developer to acquire one or more legal parcels consisting of the Adjacent Property and the ability to provide a precise description of the Project for purposes of the required CEQA analysis; however, the deadlines for the submittal as described in Section 1.0 above will ensure that a Project Description will be completed and full processing of the required CEQA analysis will be able to be commenced no later than July 30, 2006, or as soon thereafter as is reasonably practicable. 756378^0310C F. Use and Transfer Restrictions. The Purchase Agreement will generally be subject to restrictions on use and transfer during construction and for a specified period thereafter through recorded restrictions(i)to assure that the use will be consistentwith and promote the Project, (ii) to prevent speculation, (iii) to assure that any transferee has the resources,capability and experience to successfully develop the Project, and(iv)to assure long-term maintenance of the Project in an attractive first class condition. G. Exclusivitv. The City agrees for the period set forth in Section 2 that it will not negotiate with or enter into any agreement with any other entity for development or sale of the Site, and the Developer agrees not to negotiate with any other person or entity regarding the development of a Westin hotel within the Coachella Valley. H. CEQA. The intent of this Agreement is for the parties to proceed with the drafting of the Purchase Agreement, which shall require a CEQA action by the City. An Initial Study for CEQA purposes shall be undertaken for the purpose of determining the appropriate CEQA action. Once the appropriate CEQA action is determined, a more precise environmental timeline shall be developed. I. Payment of the Purchase Price for the Site. It is hereby agreed and acknowledged that the City and the Developer may agree to a Schedule of Performance in the Purchase Agreement which may call for the conveyance of the Site to the Developer, within a brief period of time following the approval of the Purchase Agreement, and any and all necessary "Entitlements" for the development of the Project. The Purchase Agreement shall contain the payment terms agreed to by the parties. J. Agreement to Negotiate. The Parties acknowledge that the Developer's Proposal and this Agreement do not establish the essential terms of the transfer of property or the development of the Project and that although they have set forth in this Agreement a framework for negotiation of the essential terms: (a) they have not set forth herein nor agreed upon all essential terms, including, e.g., price, terms, and timing of the transfer of property; (b)they do not intend the Developer's Proposal or this Agreement to be a statement of all of the essential terms; and (c)the essential terms of any transaction, if agreed to by the Parties, shall be set forth, if at all, in the Purchase Agreement approved and executed by authorized representatives of each of the Parties. The Purchase Agreement shall not exist and shall not be binding unless and until it is fully executed by both Parties, approved by counsel to each Party as to form and approved by the City Council of the City and by the authorized members or managing member of the Developer. Each Party assumes the risk that, notwithstanding this Agreement and good faith negotiations, the Parties may not enter into a Purchase Agreement due to the Parties' failure to agree upon essential terms of a transaction. K. Developer's Representations, Warranties. and Covenants. 1. The Developer represents that it has the necessary expertise, experience, and financial capability to undertake the Project contemplated herein, including expertise and experience in developing and financing mixed uses and multiple land uses including, but not limited to, office, retail, hotel, and residential 756378.03/0C uses of a similar size, quality, and design of the Development contemplated in the RFQ and the Developer's Proposal. 2. The Developer represents and agrees that its intended acquisition of the Site and, if applicable, the Extended Site, and its other intended undertakings pursuant to this Agreement shall be used only for the timely development of the Site and, if applicable, the Extended Site, and not for speculation in any manner. 3. The Developer shall only negotiate with the City's negotiating team as defined in writing by the City Manager of the City (the "City Manager") and with no other persons unless expressly authorized to do so by the City Manager. Nothing in this Agreement shall restrict the Developer from responding to inquiries from the City Council or communicating with the City Council as requested by the City. During the period of negotiations, neither the Developer nor the City's negotiating team shall make any statements to the media about the proposed Development without the approval of the other Party, which approval shall not be unreasonably denied. 4. The Developer acknowledges and agrees that prior to issuance of any certificate of occupancy for the Project, the Purchase Agreement shall include (a) certain restrictions upon assignment, sale, encumbrance, and use of the Site or the Extended Site and/or any improvements thereon without approval of the City and(b) restrictions on transfer of control of the Developer. 5. The Developer agrees to make oral and/or written reports at least monthly (or at such other times as information is requested by the City Manager) advising the City Manager of all matters and studies being made. 6. The Developer shall, within fifteen (15) days following the Effective Date, to the extent not submitted with the Developer's Proposal, make full disclosure in writing to the City of the names of the Developer's agents, authorized negotiators, employees or other associates of the Developer who may be participants in planning, negotiation, and development of the Project and other relevant information concerning the above, such as addresses,telephone numbers, employers. L. As-Is. The Developer acknowledges and agrees that all property conveyed, if at all, by the City pursuant to the Purchase Agreement shall be conveyed, on an "AS-IS, WHERE-IS AND WITH ALL FAULTS" basis, and the Developer shall be obligated to release, as applicable, with respect to its 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 the City,the City hereby grants to the Developer and its representatives and agents a revocable license during the Period of Negotiations to enter upon the Site for purposes of conducting the Developer's due diligence inspections and necessary inspections for 756376^03^OC the purposes of developing the Development Plan Package, provided that prior to such access the Developer shall: (a) deliver to the City Manager written evidence that the Developer has procured the insurance required under Section 11.2; (b) give the City Manager twenty-four (24) hours 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; (c) access the Site in a safe manner; (d) conduct no invasive testing or boring without the written consent of the City Manager; (e) allow no dangerous or hazardous condition created by the Developer or the Developer's agents; (f) comply with all laws and obtain all permits required in connection with such access; and (g) conduct inspections and testing, subject to the rights of existing occupants and contractors, if any, and only after obtaining the City Manager's consent, which shall not be unreasonably withheld. The limited license granted herein is revocable by the City and may be revoked during the continuation of any breach of this Agreement by the Developer and shall be automatically revoked and terminated,without further action of the City, upon the termination of this Agreement or any period of exclusive negotiation hereunder. 2. The 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 the Developer and its contractors and consultants arising out of any investigative activities and listing the City and the officers, officials, employees and contractors of each as additional insureds thereunder, in an amount approved by the City Manager. Such insurance shall be provided by insurer(s) licensed 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 satisfactory to the City Manager and City Attorney. Such policy of insurance shall be kept and maintained in force at all times during the term of this Agreement and so long thereafter as necessary to cover any claims of damages suffered by persons or property resulting from any acts or omissions of the Developer, the Developer's employees, agents, contractors, suppliers, consultants or other related parties.The City's Insurance Endorsement Form must be executed by the applicable insurance underwriters and delivered to the City. 3. The Developer hereby agrees to protect, indemnify, defend and hold the City and the officials, employees, agents, representatives, consultants and contractors of the City free and harmless from and against any and all claims, costs, expenses, losses, damages, liabilities, fees, fines and penalties resulting from the Developer's access to the Site or its exercise of its rights under this license, including any inspections, surreys, tests or studies performed by the Developer or its employees, consultants or contractors,save and except where such claims result solely from the gross negligence or willful misconduct of the City or its agents, employees or representatives. The Developer shall keep the Site free and clear of mechanics' liens and materialmen's liens related to the Developer's inspection of the Site. The indemnification by the Developer set forth in this Section 11.3 shall survive the termination of this Agreement, the execution of the Purchase Agreement, and the closing and transfer of the Site to the Developer and shall not merge into any deed granted pursuant to the Purchase Agreement. 756378.03/0C -,-----_,_ . -R- SECTION 2. PERIOD OF NEGOTIATIONS. A. The term of this Agreement shall be a period of one (1)year(the"Period of Negotiation") from the date this Agreement is signed by the City (the "Effective Date") 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 the Developer and City Manager have agreed upon a form of Purchase Agreement 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 Purchase Agreement has been prepared by the City and executed by the Developer, and has been submitted to the City but has not yet been approved by the City Council; or 2. For thirty (30) days if the major business terms have been agreed to and the City Manager determines that further negotiations are likely to result in a written agreement; or 3. By mutual agreement of the parties. B. Developer understands and acknowledges that if negotiations culminate in a Purchase Agreement, such agreement shall be effective only after and if the Agreement has been considered and approved by the City Council after public hearing thereon as required by law. C. Notwithstanding the Period of Negotiation established by this Agreement and in addition to the termination rights set forth in this Section 2, if the City determines in its reasonable discretion and notifies the Developer in writing (1) at any time that the Developer is not negotiating diligently or in good faith; or(2)that the Parties have failed to make substantial progress toward the negotiation of the Purchase Agreement in accordance with the Schedule; or(3)the Developer does not comply with the provisions of Section 1.C, then after complying with the provisions of Section 6.1),the City may terminate this Agreement at any time thereafter upon five (5) days written notice to the Developer and such termination shall be binding upon each of the Parties. D. Notwithstanding the Period of Negotiation established by this Agreement,the Developer may terminate this Agreement in the event that during the course of its investigations and evaluation of the Project, the Developer determines in good faith that the Project is not feasible for any reason, including, without limitation, the geotechnical and/or environmental condition of the Site or is not able to be reasonably financed. E. Upon the City's negotiating team being prepared to recommend a Purchase Agreement acceptable to the Developer to the City Council for approval, the Developer shall execute said Purchase Agreement and the City's staff shall submit the form Purchase Agreement to the City for approval. The Developer acknowledges that any Purchase Agreement shall require approval of the City and hereby agrees that, upon submittal by the 75637&OVOC Developer to the City of its fully executed Purchase Agreement, the Developer shall not withdraw such offer for a period of sixty(60) days following such submittal (provided there shall have been no material adverse changes to the Project, including applicable land use regulations, title, the geotechnical condition of the Site and the status of the Letter of Commitment). During said sixty (60) day period the City shall (a) determine whether it desires to enter into such Purchase Agreement, and(b) if it does so desire,take all actions necessary to authorize the execution of and execute the Purchase Agreement. If the City has not approved the Purchase Agreement by the end of such sixty (60) day period, this Agreement shall automatically temninate. F. In the event this Agreement is terminated as provided in this Section 2,no Party shall have any liability hereunder following such termination except as otherwise expressly set forth in this Agreement. In the event of such termination of this Agreement, unused portions of the Cost Recovery Deposit shall be allocated as provided in Section 3.A.4. In the event of such termination of this Agreement the provisions of this Section and :iection 11.3 shall not terminate, and such Sections shall survive and be binding upon the Parties notwithstanding such termination. H. The City Manager shall review and preliminarily approve the plans and all other appropriate documents at each milestone as identified in the Schedule, prior to, and as a condition precedent to, proceeding to each following milestone. SECTION 3. DEVELOPER'S RESPONSIBILITIES. A. During the Period of Negotiation, Developer will prepare such studies, reports, and analysis as shall be reasonably necessary to determine the feasibility of the Project. The Developer shall fully cooperate with the City in the development of the Project design and financing plan, subject to the terms of Section I.C. above. During the Period of Negotiation and as requested by the City, the Developer shall submit to the City the following: 1. Full disclosure of Developer's principals, partners, joint venturers, negotiators, or other associates of the Developer who are participants or principals of the Project. 2. Statement of financial condition in sufficient detail to demonstrate Developer's financial capabilities, and where applicable, those of its principals, partners, orjoint venturers,to satisfy the commitments necessitated by the Project. 3. The Developer shall negotiate exclusively with the City's negotiating team and with no other persons, including the members of the City Council, unless expressly authorized to do so by the City Manager in writing. During the Period of Negotiation, Developer and City shall coordinate community and neighborhood outreach efforts. No statements will be made by the Developer or the City's negotiating team to the media without the approval of the other party. No prepared statements shall be released to the media without the mutual consent of the respective negotiating teams. The Developer shall also cooperate with City, which 75078.03/OC will manage the environmental review of the Project, as well as the Project planning contract through the City's Focused Entitlement Process. 4. Prior to and as a condition precedent to the execution of this Agreement by the City, Developer shall submit to the City a minimum initial deposit in the amount of Fifty Thousand Dollars ($50,000.00) (the "Cost Recovery Deposit") in the form of cash or check, deposited into a trust account selected by the City Treasurer, in his sole discretion, to pay for all commercially reasonable costs incurred by the City for third party costs and expenses incurred to carry out the City's obligations under this Agreement, including any legal, environmental, planning,engineering,financial analysis, negotiations, appraisals, public ourtreach, and all other reasonable out of pocket expenses directly related to the Project incurred by the City. If the City's costs associated with its obligations under this Agreement exceed the deposit amount, the City at its sole discretion reserves the right to require the Developer to increase the Deposit to an amount not to exceed the actual or anticipated costs. Within ten (10) calendar days of written notice of such increase, Developer shall submit to the City in cash or check an amount equal to the difference between the initial deposit and the increased deposit amount. Unused portions of the Cost Recovery Deposit remaining at the time of the termination of this Agreement or at the time the Site is transferred to Developer will be returned to the Developer. 5. The Developer understands and agrees that the City's negotiating team reserves the right at any time to reasonably request from the Developer additional information, including information, data, and commitments to ascertain the depth of the Developer's capability to develop the Project expeditiously. The City's negotiating team shall provide a reasonable time in which the Developer may obtain and submit to the City such additional information. The Developer agrees to submit such additional information in a timely manner. B. The Developer acknowledges and agrees that, as the Developer., 1. It shall design and construct the Project and all required Project infrastructure at its own cost and expense. 2. It shall collaborate with the City to design and develop a mutually satisfactory Development Plan for the Project. 3. It shall make all oral and/or written reports as provided in this Agreement or at such other times as information is requested by the City Manager. 4. It shall have a continuing obligation to demonstrate, to the City, after written request, the financial capacity of Developer and its capital partners 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 Purchase Agreement until the completion of the Project. 756378.03/OC ...,,,, -- -Cl- C. The Developer acknowledges that the selection of the Developer as the developer is based in large part on the experience, qualifications, and financial capacity of the Developer and the constituent members of the Developer's development team. Accordingly, the principals of the Developer and the members of the development team,all as described in the Developer's Proposal, shall remain substantially as set forth therein throughout the Period of Negotiation. The Developer shall notify the City in writing of any proposed change in the Developer's ownership, directors, or officers, and any change in the development team, including consultants, as described in the Developer's Proposal. D. The Developer will be required to make and maintain full disclosure to the City of the methods of financing and the material terms of any Project financing obtained by Developer for the acquisition and/or development of the Project. SECTION 4. CITY'S RESPONSIBILITIES. A. Negotiate Exclusively. The City agrees that, during the Period of Negotiation and provided that the Developer is not in default of its obligations under this Agreement, the City shall negotiate exclusively and in good faith with Developer with respect to the Purchase Agreement. During the Period of Negotiation, the City shall not solicit or entertain offers or proposals from other parties concerning the Site. Developer acknowledges, however, that the City may, from time to time, be contacted by other developers respecting the Site and that such contact is expressly permitted so long as the City does not initiate such contacts and the City indicates to such other developers thatthe City has executed this Agreement with Developer and that the City 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 any offer or proposal, or negotiate with any other developer regarding the Site until the Period of Negotiation expires or this Agreement is terminated, as provided in this Agreement. B. Preparation of Agreement. If agreement is reached on the business terms for inclusion in the Purchase Agreement,the City shall prepare such Purchase Agreement for consideration by the Developer. City's outside legal, appraisal, and financial consultant expenses shall be chargeable against the Cost Recovery Deposit as provided in Section 3.A.4 of this Agreement. City shall notify Developer of the amount of the appraiser and financial consultant contracts and provide monthly notification of the legal costs of preparing the Purchase Agreement. C. Planninq Approvals. The City will undertake all acts necessary to assist Developer in securing necessary permits as may be necessary to permit the commercial/residential development at the Site, including hiring the environmental review firm and planning firm and assisting with the presentations and staff reports made to the City's review boards through its Focused Entitlement Process. By its execution of this Agreement, the City is not committing to or agreeing to undertake any other acts or activities requiring the subsequent independent exercise of discretion by the City Council. The Parties recognize that one or more of the documents or permits or any other entitlement to be prepared, reviewed, or approved as may be applied for or processed pursuant to this Agreement may fail to be approved as a result of subsequent studies, 75e378^03ioc _1n- reviews, and proceedings involving the exercise of discretion by the City Council or any public agency having regulatory jurisdiction over the Site or the Project. The City or the Agency shall not be liable to Developer for any damages, injuries, or losses of any kind including consequential damages or loss of profits that the Developer may suffer as a result of the use of discretion, as provided for herein, by the City or any other public agency having regulatory jurisdiction over the Project or the Site, nor shall the City be compelled to take any action to avoid any such damages, injuries, or losses. Developer expressly and without reservation or limitations of any kind holds the City and all public agencies having regulatory jurisdiction over the Site or the Project harmless for any damages, injuries, or losses of any kind the Developer may suffer, directly or indirectly, as a result of the lawful exercise of discretion made, rendered,determined, or implemented by the City or any other agency as provided under law or this Section 4C. D. Contract Authority. The City Manager is authorized to enter into contracts on behalf of the City for the purposes of planning, environmental review, appraisals,and such other services identified in Section &A of this Agreement in any amount, provided such contracts have been funded by Developer and the contract amount has been deposited with City by Developer under the same terms and conditions described in Section 3.A above. E. Removal of Site from Convention Center Bond Issue. City shall be solely responsible for removing the site from the underlying security of the Convention Center bond issue, at the City's sole cost and expense (without any right of reimbursement from the Cost Recovery Deposit) on or before the date of the conveyance of the Site to the Developer. The City shall cooperate with Developer to permit the Developer and its consultants to enter the Site prior to the removal of the Site from the bond issue in order to conduct inspections and/or studies. The City shall be entitled to accompany Developer and its consultants during any such inspections. F. Confidentiality. The Developer acknowledges that all documents submitted to the City are public records; however, Developer and City agree that certain documents may not be required to be disclosed. Prior to delivering any information to the City which the Developer deems to be confidential or proprietary, and non-disclosable under law, the Developer shall identify such information. The City Manager shall review the Developer's position and if the City Manager concurs with such position,the Developer shall deliver the information to the City and the City shall maintain the non-disclosable status of the information. If the City determines that the information is a disclosable public record, the City Manager shall so advise the Developer and the Developer can decide to submit the information as initially described or the Developer shall meet with the City Manager and review or formulate alternative forms or content of submissions. In the event the Developer fails or refuses to deliver the information, either Party shall have the right to terminate this Agreement. The Parties shall mutually cooperate in the defense of any legal challenge of a determination of the City Manager pursuant to this section that any such record is non-disclosable. 756398.03/OC SECTION 5. GOOD FAITH DEPOSIT. Concurrently with the execution of this Agreement, Developer shall submit to the City a initial good faith deposit in the sum of Fifty Thousand Dollars ($50,000.00) (the "Good Faith Deposit") in the form of a cash deposit, cashiers' check, irrevocable letter of credit, or other form of security acceptable to the City to ensure that the Developer will proceed diligently and in good faith to negotiate and perform all of the Developer's obligations under this Agreement. If the Good Faith Deposit is in cash or a certified cashiers'check, it shall be deposited with the City consistent with City practices. Interest, if any, shall be added to the Good Faith Deposit and held as additional security for the Developer's obligations hereunder. Upon completion of the appraisal of the Site as provided in this Agreement and the mailing of notice of completion of such Appraisal to the Developer, and the execution of the Purchase Agreement,the Developer shall supplement the Good Faith Deposit by submitting to the City additional funds towards the Good Faith Deposit so that the total of the Good Faith Deposit will equal three percent (3.0%) of the appraisal amount. The Parties agree that a Good Faith Deposit in an amount equal to three percent (3.0%) of the appraised value of the Site is reasonable for all purposes provided in this Agreement. In the event the Period of Negotiation expires without execution of the Purchase Agreement for any reason other than (i) the default of the City; (fl) the geotechnical or environmental condition of the Site makes the development of the Site unfeasible; or(iii) the circumstances described in Section 2.A, i.e.,the Developer and the City staff has agreed upon a form of Purchase Agreement acceptable to each and City fails to approve such form within the Period of Negotiation, as extended by the terms of Section 2.A, City shall retain the Good Faith Deposit as liquidated and agreed damages, representing the cost to the City of providing the exclusive negotiating arrangement and assurances provided in this Agreement. In the event the Purchase Agreement is executed, the Good Faith Deposit shall be applied or credited against the Developer's financial obligations to the City under the Purchase Agreement. SECTION 6. MISCELLANEOUS. A Brokerage Commission. City and Developer hereby represent and acknowledge that neither party has engaged a broker or finder to represent such parties in connection with this Agreement. The City and Developer hereby 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 City and the Developer. Without the prior written consent of the City, Developer may not assign its rights or delegate its obligations hereunder; provided, however, Developer shall have the right to assign its rights in and to this Agreement and the Purchase Agreement to any entity in which Developer, or any "Affiliate" of Developer holds a direct or indirect interest and maintains an active role in the management of the affairs of such entity. The City, without 7563'7S.03/OC the prior consent of the Developer, may assign any or all of its rights obligations under this Agreement, to the Agency. 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,and any payments from Builder to Company, may be delivered in person to an officer of any parry, 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 whom intended, as follows: If to Developer: The Oasi Group, LLC 100 S. Sunrise Way, #498 Palm Springs CA 92262 Attn: Lauri Kibby Phone No.: (310) 877-3110 Fax No.: (310) 476-9216 If to City: The City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA, 92263 Attn: City Manager 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 receipt of such transmission shall be confirmed by follow-up notice within seventy-two (72) hours by another method authorized above. Any parry hereto may from time to time, by written notice to the other, designate a different address which shall be substituted for the one 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 City nor Developer shall be deemed to be in default of its respective obligations under this Agreement unless 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. E. Ownership of Documents. In the event the Period of Negotiation expires without execution of the Purchase Agreement, Developer shall, at the request of the City and in consideration for the actual, out-of-pocket cost incurred by Developer therefor, transfer to City copies of any non-privileged and/or proprietary reports, studies, analysis, site plan layouts, development cost estimates, engineering studies, regarding the proposed 756378.03/OC development and prepared during the Period of Negotiation, which copies shall become the property of City. Such transfer shall be made without any representation or warranty by the 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 Imitation, the copyright (if any) associated with such documents. F. Purpose of Contract. It is expressly understood and agreed by the parties hereto that this is an Agreement regarding the conduct of contract negotiations only and does not convey any interest in the property whatsoever. It is further agreed and understood that this Agreement does not imply any obligation on the part of the City or Developer to enter into any agreement that may result in negotiations contemplated herein. Nevertheless, the City would not have entered the Agreement if the Developer's proposal did not fulfill City's objectives under the Redevelopment Plan and have merit, as represented. G. Amendment. This Agreement may only be amended by a document in writing signed by the parties hereto. H. Acceptance. This Agreement, when executed by the Developer and delivered to the City, shall constitute a binding Agreement and the Parties acknowledge the City has authorized the City Manager to execute an Exclusive Negotiating Agreement at its meeting of January 18, 2006. I. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are 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. J. Governing Law; Dispute Resolution. The 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 City and the Developer 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, non- binding mediation, prior to initiating any judicial proceeding to enforce the terms of this Agreement. The Parties shall bear their costs, including attorneys' fees, in the dispute resolution process, including any judicial proceedings. K. Superseded by Purchase Agreement. Following mutual execution by the Parties of a Purchase Agreement, this Agreement shall be of no further force or effect, except that the indemnity set forth in Section 11.3 and the representations and warranties set forth in Sections 1.K shall remain in effect with respect to claims arising during the term of this Agreement. In the event of any conflict between the provisions of this Agreement and any Purchase Agreement approved and executed by the Parties,the provisions of the Purchase Agreement shall for all purposes prevail. 756378^03/OC L. No Duty. Notwithstanding any other provision of this Agreement,the City shall not have any obligation or duty under this Agreement or any liability whatsoever in the event the Parties fail to execute a Purchase Agreement. M. Non-liability of City or Agency Officials and Employees. No member, official, representative, director, staff member, attorney, or employee of either the City or the Agency shall be personally liable to the Developer or any successor in interest in the event of any default or breach by the City or for any amount which may become due to the (Developer or to its successor with respect to this Agreement, the Project or the Site. N. Purchase Agreement Approval. If the negotiations hereunder culminate in a Purchase Agreement, such Purchase Agreement will be considered for approval by the City Council only after all required public hearings have been held and after compliance with all applicable laws and ordinances. The concurrence of the City Manager or any member of City staff or the City's consultants or advisors with the terms and provisions of a proposed Purchase Agreement under any provisions of this Agreement shall not be construed or interpreted as the City approving or accepting such terns. Such concurrence shall be viewed as nothing more than the willingness of the City negotiators to recommend to the City Council that the City negotiators recommend approval of such terms. A Purchase Agreement shall only become effective after it has been considered and approved by the City Council after notice and, if required by law or requested by members of the City Council, the conduct of a public hearing. O. Definitions. In construing the provisions of this Agreement, the following definitions shall apply: "Adjacent Property" means such additional property adjacent to the Site the Developer may acquire prior to the milestone date specified in the Schedule. The land that can be included within the Adjacent Property is specifically described in Exhibit"A2"to this Agreement. "Affiliate" means any person or entity in control of, under the control of, or in common control with the Developer. "City"means the City of Palm Springs, a charter city organized under the laws of the State of California. "Agreement"means this Exclusive Agreement to Negotiate between the City and the Developer. "Developer" means the Nexus Development Corporation — Central Division, a California corporation. "Developer's Proposal" means the Developer's submittal dated June 8, 2005, the supplemental material dated June 30, 2005 submitted by the Developer for presentation to the City, and the Developer's presentation and answers to questions of the City Council at the public hearing on October 5, 2005. 756378.03/OC ., ,,. - <,_.,__, -15- "Evidence"means documentation in the form of recorded deeds of trust, contracts of sale, or other instruments of conveyance demonstrating to the reasonable satisfaction of the City Manager and City Attorney that Developer has acquired or is under contract to acquire one or more of the parcels that make up the Adjacent Property (subject to any commercially reasonable conditions, including the City's sale of the Site to Developer). "Executive Director" means the Executive Director of the Community Redevelopment City of the City of Palm Springs or the Executive Director's designee. "Extended Site" means the Site and the Adjacent Property. "Feasibility Analysis" means the identification of a hotel development program that analyzes the mix (i.e. number) of transient hotel rooms and condominiums, project amenities, meeting rooms, restaurant and retail space, based on the Project Description; and a preliminary project budget based on those assumptions. "Letter of Commitment"means a document from Westin Hotels, or another four star hotel acceptable to the City Council, in a form reasonably acceptable to the City evidencing the hotel's commitment to participate in the Project and operate an appropriate brand hotel or resort as a part of the Project, and that the Project meets the requisite brand standards for minimum number of hotel rooms and amenities "Project"means the Resort, condominiums, amenities, and public improvements to be developed by Developer on the Site or the Extended Site and any additional public improvements . "Project Description" means an accurate written description of the development of the site or the Extended site, including the number, type, and size of hotel rooms; the number and size of condominium units; the size, extent, description, and intensity of the amenities (including, but not limited to swimming pools and other recreational facilities, spa, health club, commercial retail space, meeting rooms, and restaurants, and any other uses or facilities that the developer desires to include in the Project; and the number of parking spaces and related facilities. "Purchase Agreement"means the document generally described in Recital E of this Agreement. The term "Purchase Agreement," in the event the City assigns any portion of its rights or obligations under this Agreement to the Agency, also means and includes a disposition and development agreement entered into pursuant to the provisions of the California Redevelopment Law. "Redevelopment Plan"means the Amended and Restated Redevelopment Plan for Merged Project Area #2, formerly the Tahquitz Andreas Redevelopment Project, of the City. "Resort" means a four star or four diamond quality hotel resort property. "RFQ"means the City's Request for Qualifications seeking a developer for the Site. 756778.03/OC ., 1 _7s_ "Schedule" means the schedule attached to this Agreement as Exhibit "B" for the completion of the Developer's and City's respective obligations pursuant to this Agreement. "Site"means the approximately ten (10) acre parcel of land generally located at the northeast corner of Calle Alvarado and Amado Road, north of the City's Convention Center, and more specifically described and depicted on Exhibits "All" and "A2" to this ,Agreement. "Site Plan"means a plan, prepared to scale, showing accurately and with complete dimensioning, all of the buildings, structures, uses and the manner of development proposed for the Site or the Extended Site, including mass, height, and conceptual elevations , location of amenities and related facilities consistent with the Project Description, and the location of parking and related facilities. "Term Sheet" means a non-exhaustive narrative description of the essential terms and conditions that will be incorporated into the Purchase Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day first above written. "CITY" THE CITY OF PALM SPRINGS, a Charter City and municipal corporation Mff.yor A EST• APPROVED BY CITY COUNCIL /City Clerk =� APPROQ,,?V D AS TO FORM: City Att"orney ull[SIGNATURES CONTINUED ON NEXT PAGE] 756378.03/OC "DEVELOPER" THE OASI GROUP, LLC, a California Limited Liability corporation (Check One: individual, _partnership, _corporation)' �I [NOTARIZED] Signature- Print Name: Print Title: [NOTARIZED] Signature Print Name: Print Title: Mailing Address: (Corporations require two signatures; one from each of the following: (A) Chairman of Board, President, any Vice President; AND(B) Secretary,Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer.) [END OF SIGNATURES/NOTARY JURAT(S) FOLLOW] _iR_ STATE OF CALIFORNIA ) ) ss. COUNTY OF ) ON ; - 6� - before me, E I Notary Public, personally appeared /_a u v ' personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the persons) acted, executed the instrument. Witness my hand and official seal. [SEAL] G-q: ~ NNE COONS .. •.., COMM,#1401201 Signature NOTARYPU©LIC-CALIFORNIA 0 RIVERSIDE COUNTY n L ., MY COW EXPIRES FEB.18,20077 STATE OF CALIFORNIA ) ) ss. COUNTY OF ) ON before me, Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. [SEAL] Signature 19- EXHIBIT"Al" TO EXCLUSIVE AGREEMENT TO NEGOTIATE LEGAL DESCRIPTION OF THE PROPERTY The parcel is located in the City of Palm Springs, County of Riverside, bearing APN Numbers 508-055-008, 508-055-009, and 508-055-007. EXHIBIT "A2" TO EXCLUSIVE AGREEMENT TO NEGOTIATE MAP OF THE PROPERTY (Including the Site and the Adjacent Property) M1 EXHIBIT"ESPY ENA Milestones/Schedule ENA Terms Negotiated and Executed 2/27/06 Enter into contract with consulting firm to undertake Environmental assessment and perform planning services 3/10/06 Commence appraisal of property 3/10/06 Appraisal completed and value accepted by Parties 4/15/06 Submittal of Site Plan, Project Description, Feasibility Analysis, and Evidence of Acquired Property 7/30/06 Commence CEQA review process 7/30/06 Letter of Commitment from Starwood/Approval by Committee 9/30/06 Submittal of Entitlement Applications with City 10/30/06 Commence Negotiation of Term Sheet 12/1/06 Complete Negotiation of Term Sheet 12/31/06 Complete CEQA Process 1/15/07 Complete Negotiation of DDA 12/15/06 Complete City Entitlement Process and Agency Approves DDA 3/1/07