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Community Redevelopment Agency Staff Report
DATE: NOVEMBER 16, 2005 JOINT PUBLIC HEARING
SUBJECT: APPROVAL OF A DISPOSITION AND DEVELOPMENT AGREEMENT
WITH GEIGER, LLC, FOR THE DISPOSITION OF 14+ ACRES OF
AGENCY-OWNED LAND FOR THE PURPOSE OF DEVELOPING A
393,000 SQUARE FOOT RETAIL SHOPPING CENTER ON 38+ ACRES
AT THE NORTHEAST CORNER OF RAMON ROAD AND GENE AUTRY
TRAIL (HIGHWAY 111) IN THE CITY OF PALM SPRINGS, MERGED
REDEVELOPMENT PROJECT AREA NO. 1
FROM: David H. Ready, Executive Director
BY: Community & Economic Development Department
SUMMARY
Approval of the proposed Disposition and Development Agreement allows for the
transfer of ownership from the Community Redevelopment Agency to Geiger, LLC of
approximately 14 acres of land for the purpose of developing a 393,000 square foot
retail shopping center on approximately 38 acres of land at the northeast corner of
Ramon Road and Gene Autry Trail (Highway 111). The fair market appraised value of
the Agency's land has been offset by the pro rata assigned share of developer's costs in
remediating the former landfill site resulting in a transfer price of zero and a
determination of no Agency subsidy for the project,
RECOMMENDATIONS:
COMMUNITY REDEVELOPMENT AGENCY RECOMMENDATION:
1. Adopt Resolution No. "A RESOLUTION OF THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS,
CALIFORNIA, APPROVING A DISPOSITION AND DEVELOPMENT
AGREEMENT WITH GEIGER, LLC FOR THE DISPOSITION OF
APPROXIMATELY 14 ACRES OF LAND FOR THE DEVELOPMENT OF A
RETAIL SHOPPING CENTER AT THE NORTHEAST CORNER OF RAMON
ROAD AND GENE AUTRY TRAIL (HIGHWAY 111) IN MERGED PROJECT
AREA NO. 1
Item No. R A 1 .
Community Redevelopment Agency Staff Report
November 16, 2005 -- Page 2
Geiger Disposition and Development Agreement
CITY COUNCIL RECOMMENDATION:
1. Adopt Resolution No. "A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF PALM SPRINGS, CALIFORNIA, CONCURRING WITH THE
COMMUNITY REDEVELOPMENT AGENCY REGARDING THE APPROVAL OF
A DISPOSITION AND DEVELOPMENT AGREEMENT WITH GEIGER, LLC
STAFF ANALYSIS:
In February 2002 the Agency entered an Exclusive Agreement to Negotiate
("Agreement") with Geiger, LLC of Beverly Hills, California for the inclusion of Agency-
owned land at the corner of Gene Autry Trail and Ramon Road, commonly known as
the former dumpsite parcel, in the potential future development of a regional retail
shopping center. The Agency approved an extension of the Agreement in April 2003,
and again in March 2004. The current expiration date of the Agreement is March 16,
2007. During this period, in addition to designing and marketing the project to
prospective tenants, Geiger developed a remediation plan for the clean-up of the former
dump site which includes the Agency-owned land and two adjacent parcels now owned
by Geiger. The remediation plan was submitted by Geiger to CaIEPA Department of
Toxic Substances Control ("DTSC") and approved in March 2004.
Through a License for Performance of Remediation Work ("License") approved by the
Agency in March 2004, and subsequently amended in March and October 2005, Geiger
has been allowed access to the Agency-owned land during the past twenty months to
implement the requirements of the DTSC-approved remediation plan. Geiger has been
solely responsible for all soils remediation costs for the site with the expectation, under
the provisions of the Agreement, that Geiger would eventually acquire a fee interest in
the Agency's land at fair market value with an offset for remediation costs (with the
offset not to exceed the value of the property conveyed). Also, per the Agreement, it
was anticipated that the Agency would not provide, and the remediation offset would not
be considered, financial assistance to the project.
The City's Architectural Advisory Committee recommended the project design for
approval on June 20, 2005. Following preparation and review of the Draft EIR for the
project, the Planning Commission recommended the project for approval on a
unanimous 7-0 vote on September 28, 2005. The City Council approved the project
and Final EIR on a unanimous 5-0 vote on October 19, 2005. Having completed the
required environmental process and project entitlements City staff now recommends
that the Agency-owned land be transferred to Geiger, LLC under the terms of the
proposed Disposition and Development Agreement (DDA).
One established legal principle for establishing value of contaminated land is to net the
"as if clean" value against the all-in cost of remediating it. The fair market value of the
entire site assuming a fully remediated site, as documented in the October 3, 2005
appraisal by Lidgard and Associates, Inc., is $12,245,000 or approximately $7.48 per
Community Redevelopment Agency Staff Report
November 16, 2005 -- Page 3
Geiger Disposition and Development Agreement
square foot for the full 38-acre site. The Agency's assigned value for its approximately
14 acres, prior to the required offset for remediation costs, is $4,480,000 or 36.6% of
the total value. The DDA acknowledges that Geiger has demonstrated to the Agency's
satisfaction that the $12,588,435 in remediation costs incurred by Geiger, including an
appraiser-determined 23% adjustment for appropriate overhead, supervision costs and
developer's risk incentive for the remediation effort, exceed the site's appraised fair
market value. Therefore the remediation offset contemplated in the Exclusive
Agreement is considered equal to the value of the property resulting in a transfer price
of zero.
FISCAL IMPACT: IFinance Director Review -
There is no fiscal impact to the Agency given that per the terms of the DDA, Geiger's
purchase price for the Agency's land is offset by the remediation costs incurred by
Geiger to clean up the former dumpsite. The Agency did not contribute to the
remediation cost, nor does the DDA provide any financial incentive to the project.
J hn S ay o d, Director of Curt Watts
C, unity and Economic Deveopment Redevelopment Administrator
Thomas Wilson, Assistant City Manager
Development Services
David H. Ready, City Ma r
Attachments:
1. Notice of Joint Public Hearing
2. Agency Resolution
3. City Council Conformance Resolution
4. Summary Report for Disposition and Development Agreement
5. Disposition and Development Agreement
Community Redevelopment Agency Staff Report
November 16, 2005 -- Page 4
Geiger Disposition and Development Agreement
NOTICE OF JOINT PUBLIC HEARING
COMMUNITY REDEVELOPMENT AGENCY/CITY COUNCIL
CITY OF PALM SPRINGS
NOTICE IS HEREBY GIVEN, that the Community Redevelopment Agency of the City of Palm
Springs, California ("Agency") and the City Council of the City of Palm Springs will hold a joint public
hearing on Wednesday, November 2, 2005, at approximately 6:00 p.m. or as soon as possible thereafter,
in the City Council Chamber at City Hall, 3200 Tahquitz Canyon Way, Palm Springs, California 92262.
The purpose of this hearing is to consider the approval of a Disposition and Development
Agreement ("DDA") between the Agency and Geiger, LLC ("Geiger') for the transfer of the Agency's
ownership of approximately 14 acres of property located at the northeast corner of Gene Autry Trail
(State Highway 111) and Ramon Road to Geiger for development of an approximately 393,000 square
foot retail shopping center(the "Project") on an approximately 37-acre site(the"Site").
The purpose of the DDA is to (a) effectuate the Agency's Redevelopment Plan for Merged Project
Area No. 1 in accordance with the terms and conditions set forth in the DDA, (b) to provide for the
disposition by the Agency of the Agency Parcel to Geiger, and the maintenance of such land by Geiger,
consistent with the general provisions and goals as identified in the previously executed Exclusive
Agreement to Negotiate and the License Agreement between the Agency and Geiger, as amended, (c) to
provide for the development and construction of the Project by Geiger on the Site, including the
construction of necessary or appropriate rights-of-way and other public improvements, and (d) to impose
certain covenants, conditions, and restriction upon the Site and upon the development thereof and upon
Geiger and each successor owner in order to assure the development, use, operation, and maintenance
of the Site as a Class A Shopping Center as further required by the DDA.
The staff report and other supporting documents regarding this matter are available for public
review at City Hall between the hours of 8:00 a.m. and 5:00 pm. Monday through Friday. Please contact
the City Clerk's Department at (760) 323-8204 if you would like to schedule an appointment to review
these documents.
Response to this notice may be made verbally at the Public Hearing and/or in writing before the
hearing. Written comments may be made to the Community Redevelopment Agency of the City of Palm
Springs and City Council by letter(for mail or hand delivery)to:
James Thompson, City Clerk
3200 E. Tahquitz Canyon Way
P.O. Box 2743
Palm Springs, CA 92263
Any challenge of the proposed project in court may be limited to raising only those issues raised at the
public hearing described in this notice, or in written correspondence delivered to the City Clerk at, or prior,
to the public hearing. (Government Code Section 65009(b)(2)).
An opportunity will be given at said hearing for all interested persons to be heard. Questions regarding
this case may be directed to Curt Watts, Redevelopment Administrator, at(760) 323-8260.
Si necesita ayuda con esta carta, porfavor Ilame a la Ciudad de Palm Springs y puede hablar con Nadine
Fieger telefono (760) 323-8245.
James Thompson, City Clerk
Community Redevelopment Agency Staff Report
November 16, 2005 -- Page 5
Geiger Disposition and Development Agreement
RESOLUTION NO.
OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY
OF PALM SPRINGS, CALIFORNIA APPROVING A DISPOSITION
AND DEVELOPMENT AGREEMENT WITH GEIGER, LLC FOR THE
DISPOSITION OF APPROXIMATELY 14 ACRES OF LAND FOR
THE DEVELOPMENT OF A RETAIL SHOPPING CENTER AT THE
NORTHEAST CORNER OF RAMON ROAD AND GENE AUTRY
TRAIL (HIGHWAY 111) IN MERGED PROJECT AREA NO. 1
WHEREAS, the Community Redevelopment Agency of the City of Palm Springs,
California ("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 (Health and Safety Code Section 33000 et. seq.); and
WHEREAS, the Agency desires to effectuate the Amended and Restated
Redevelopment Plan for Merged Redevelopment Project No. 1, which includes the
Ramon-Bogie Constituent Area, by providing for the development of a regional retail
shopping center featuring a "big box" retail use (the "Project") within a portion of the
approximately 38-acre vacant property at the northeast corner of Ramon Road and
Gene Autry Trail/Highway 111 (the "Site") in the City of Palm Springs, California; and
WHEREAS, the Agency and Geiger, LLC ("Geiger") entered into that certain "Exclusive
Agreement to Negotiate", "Amended and Restated Exclusive Agreement to Negotiate"
and "Second Amended and Restated Exclusive Agreement to Negotiate" ("Prior
Exclusive Agreements") in order to negotiate diligently and in good faith to prepare and
enter into a Disposition and Development Agreement ("DDA") for the development of
the Project; and
WHEREAS, the Agency approved a "License for Performance of Remediation Work", as
subsequently amended (the "License"), to allow Geiger to enter upon Agency-owned
property to undertake the remediation of soil conditions on the Site in accordance with
its implementation of the Remediation Action Workplan approved by the California
Department of Toxic Substances Control ("DTSC") on March 4, 2004 for the
remediation of the Site; and
WHEREAS, the construction of the Project will result in additional sales tax revenue and
jobs for the City, therefore improving the City's ability to provide services to all its
residents, as well as improve overall living conditions for low and moderate income
households in the City; and
WHEREAS, Section 33430 of the Community Redevelopment Law allows that an
agency may, "for purposes of redevelopment, sell, lease, for a period not to exceed 99
years, exchange, subdivide, transfer, assign, pledge, encumber by mortgage, deed of
Community Redevelopment Agency Staff Report
November 16, 2005 -- Page 6
Geiger Disposition and Development Agreement
trust, or otherwise, or otherwise dispose of any real or personal property or any interest
in property;" and
WHEREAS, the Agency desires to transfer to Geiger approximately 14 acres of land
owned by the Agency to allow for the development of the Project; and
WHEREAS, Section 33432 of the Community Redevelopment Law requires that any
such disposition of property shall be conditioned on the redevelopment and use of the
property in conformity with the redevelopment plan; and
WHEREAS, a Notice of Public Hearing concerning the Disposition and Development
Agreement was published in accordance with applicable law; and
WHEREAS, the Agency has considered the staff report, and all the information,
testimony and evidence provided during the public hearing on November 2, 2005.
NOW, THEREFORE, BE IT RESOLVED by the Community Redevelopment Agency of
the City of Palm Springs, California as follows:
SECTION 1. The above recitals are true and correct and incorporated herein.
SECTION 2. Geiger proposes to develop and construct an approximately
393,000 square foot retail shopping center on the approximate 38-
acre Site which includes the Agency's 14 acres. The Project
includes a 117,000 square foot home improvement store and
adjacent 35,000 square foot garden center, nine additional major
tenant spaces ranging in size from 10,000 square feet to 36,000
square feet, four retail stores ranging from 6,000 square feet to
12,600 square feet, and four restaurants ranging from 3,200 to
9,500 square feet.
SECTION 3. The Project improves a blighted portion of the Ramon-Bogie
Constituent Area of Merged Redevelopment Project No. 1 and will
further increase tax increment to the Agency and sales tax
collections to the City.
SECTION 4. Pursuant to the California Environmental Quality Act (CEQA), the
Community Redevelopment Agency finds that in connection with
the approval of the DDA, the City Council certified the Final EIR for
the Project on October 19, 2005.
SECTION 5. The Agency does hereby find and determine as follows:
(a) The property was used as a municipal landfill that accepted
household refuse and inert construction waste from the early
Community Redevelopment Agency Staff Report
November 16, 2005 -- Page 7
Geiger Disposition and Development Agreement
1930s until the early 1960s. As a separate project, a
Removal Action Workplan ("RAW") approved in March 2004
by CaIEPA Department of Toxic Substances Control
("DTSC") has recently been completed by Geiger, LLC at the
site to excavate and manage soil and landfill refuse/debris
associated with the former landfill site. Consequently, any
potential hazards associated with the site's previous use as
a municipal landfill were effectively mitigated from the site
during the RAW process. The DDA provides environmental
indemnity for the Agency by Geiger, and California's Polanco
Redevelopment Act provides immunity from liability for
redevelopment agencies and subsequent property
purchasers for sites cleaned up under a cleanup plan
approved by DTSC.
(b) The DDA further effectuates the purposes of the Community
Redevelopment Law by reversing or alleviating any serious
physical, social, and economic burden of the Community
which cannot reasonably be expected to be reversed or
alleviated by private enterprise acting alone, in that it will
clean up a blighted parcel and a potential health hazard to
the community and that it will provide for additional
commercial development within the City and increase the
City's tax base.
(c) The DDA further effectuates the purposes of the Community
Redevelopment Law as it is intended to eliminate blight and
promote the health, safety and general welfare of the people
of Palm Springs by facilitating a major commercial
development.
SECTION 6. The Project is consistent with the Implementation Plan for this area,
insofar as the Project will increase tax increment and increase the
City's commercial sector by attracting major retail businesses to the
City, in order to further capture a portion of the significant sales tax
leakage that occurs in Palm Springs.
SECTION 7. Based on the foregoing reasons, this Disposition and Development
Agreement is hereby approved and incorporated herein by this
reference.
SECTION 7. The Executive Director of the Agency, and/or his designee, is
authorized to execute all necessary documents, in a form approved
by the Agency counsel.
ADOPTED this 2nd day of November 2005.
Community Redevelopment Agency Staff Report
November 16, 2005 -- Page 8
Geiger Disposition and Development Agreement
AYES:
NOES:
ABSENT:
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS,
CALIFORNIA
By
Assistant Secretary Chairman
REVIEWED & APPROVED AS TO FORM
Community Redevelopment Agency Staff Report
November 16, 2005 -- Page 9
Geiger Disposition and Development Agreement
RESOLUTION NO.
OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS,
CALIFORNIA CONCURRING WITH THE COMMUNITY
REDEVELOPMENT AGENCY'S APPROVAL OF A DISPOSITION
AND DEVELOPMENT AGREEMENT WITH GEIGER, LLC
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Springs,
California that it concurs with the action of the Community Redevelopment Agency in
the matter of approving a Disposition and Development Agreement with Geiger, LLC.
ADOPTED this 2°d day of November 2005.
AYES:
NOES:
ABSENT:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By
City Clerk City Manager
REVIEWED &APPROVED AS TO FORM
Community Redevelopment Agency Staff Report
November 16, 2005 -- Page 10
Geiger Disposition and Development Agreement
SUMMARY REPORT:
DISPOSITION AND DEVELOPMENT AGREEMENT
by and between
the Community Redevelopment Agency of the City of Palm Springs, California
and
Geiger, LLC of Beverly Hills, California
FOR THE DISPOSITION OF APPROXIMATELY 14 ACRES OF LAND
for the purpose of constructing an approximately 393,000 square foot retail
shopping center in the City of Palm Springs, California
MERGED REDEVELOPMENT PROJECT NO. 1
NOVEMBER 2005
Community Redevelopment Agency Staff Report
November 16, 2005 -- Page 11
Geiger Disposition and Development Agreement
INTRODUCTION
Before real property acquired by a Community Redevelopment Agency with tax
increment proceeds may be sold or leased, the transaction must be approved by
the Agency Board in accordance with California Health and Safety Code Section
33433. This Section requires a "Summary Report", which describes and
specifies certain information in regard to this proposed transaction, be available
for public inspection.
DESCRIPTION OF THE PROPOSED AGREEMENT
Site and Interests to be Conveyed
The Site consists of three land parcels of approximately 14 acres located
adjacent to the Developer's existing property of approximately 24 acres at the
northeast corner of Ramon Road and Gene Autry Trail (State Highway 111). The
combined acreage is the location of the City's former dumpsite, which Developer
has remediated per the provisions of a Removal Action Workplan ("RAW")
approved by the CaIEPA Department of Toxic Substances Control ("DTSC") on
March 4, 2004. The Developers of the Property, Geiger, LLC of Beverly Hills,
California, are seeking to acquire the Agency-owned parcels at fair market value
offset by the pro rata assigned remediation costs for Developer's prior
remediation of the Site.
Proposed Development
The Developer/Purchaser is proposing to develop a 393,000 square foot retail
shopping center including a 117,000 square foot home improvement store and
adjacent 35,000 square foot garden center, nine additional major tenant spaces
ranging in size from 10,000 to 36,000 square feet, four retail stores ranging from
6,000 square feet to 12,600 square feet, and four restaurants ranging from 3,200
to 9,500 square feet. The Final Environmental Impact Report
(SCH#2003121001) for the project was certified by the Palm Springs City Council
on October 19, 2005 per Resolution No. 21433.
Financing
The Developer will privately finance the construction of the retail shopping center
and required public improvements. No public financing is required for the
construction of the new facility.
Agency Responsibilities
The Agency agrees to transfer its approximately 14 acres of property to the
Community Redevelopment Agency Staff Report
November 16, 2005 -- Page 12
Geiger Disposition and Development Agreement
Developer. The appraised fair market value of $4,480,000 is offset by the pro
rata assigned remediation costs of $4,605,108 for the Developer's former
remediation of the Site, for a final transfer value of zero, resulting in no financial
assistance to the project by the Agency.
Developer Responsibilities
The DDA will commit the Developer to a Schedule of Performance. The
Developer commits to developing the project as approved by the Palm Springs
City Council on October 19, 2005 including the architectural upgrades, noise
buffering, quality landscaping, public improvements, and other components.
Agency's other standard terms and conditions, including non-discrimination and
maintenance covenants, and other terms and conditions in remain in the
Disposition and Development Agreement for Developer.
COST OF AGREEMENT TO THE AGENCY
In recognition of the offset of Developer-incurred remediation costs against the
appraised fair market value of the property, the Agency shall receive no funds
from Developer from the property transfer. Per the provisions of the DDA, the
Agency shall pay the premium for a CLTA policy, all documentary transfer taxes,
one-half (1/2) of all escrow fees and costs, and Agency's share of prorations, if
any.
DISPOSITION AND DEVELOPMENT AGREEMENT
by and between the
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
and
GEIGER,LLC
DATED:
November 10,2005
TABLE OF CONTENTS
Page
1. SUBJECT AND PURPOSE OF AGREEMENT; PARTIES; APPLICABLE REQUIREMENTS.............................I
1.1 BACKGROUND REGARDING THE PROJECT......................................................................................................................1
1.2 PURPOSE OF THE AGREEMENT............................................. ..........................................................................................2
1.3 SCOPE OF AGREEMENT...................................................................................................................................................2
1.4 PARTIES TO THE AGREEMENT.........................................................................................................................................2
1.5 LOCAL GOVERNMENTAL REQUIREMENTS APPLICABLE TO AGREEMENT........................................................................3
1.6. NOT A DEVELOPMENT AGREEMENT...............................................................................................................................3
1.7 DEFINITIONS; ATTACHMENTS. .......................................................................................................................................3
2. PROHIBITION AGAINST CHANGE IN OWNERSHIP,MANAGEMENT AND CONTROL OF DEVELOPER
2.1 IMPORTANCE OF DEVELOPER QUALIFICATIONS. ............................................................................................................3
2.2 OWNERSHIP TRANSFER OR ASSIGNMENT.......................................................................................................................4
2.3 CHANGE IN MANAGEMENT OR CONTROL.......................................................................................................................6
2.4 ASSIGNMENT BY OPERATION OF LAW............................................................................................................................7
2.5 REMEDIES FOR IMPROPER TRANSFERS...........................................................................................................................7
2.6 MEMORANDUM OF DDA;PERMITTED MORTGAGEE PROTECTION.................................................................................8
3. REPRESENTATIONS AND WARRANTIES................................................................................................................17
3.1 DEVELOPER'S REPRESENTATIONS AND WARRANTIES. .................................................................................................17
3.2 AGENCY REPRESENTATIONS AND WARRANTIES..........................................................................................................19
3.3 SURVIVAL. ...................................................................................................................................................................20
4. CONVEYANCE OF PROPERTY/ALLEY DEDICATION.........................................................................................20
4.1. THE PROPERTY TO BE CONVEYED...............................................................................................................................20
4.2 PURCHASEPRICE..........................................................................................................................................................20
4.3 AGENCY ASSISTANCE FOR PUBLIC DOCUMENTS..........................................................................................................21
4.4 ESCROW.......................................................................................................................................................................21
4.5 INVESTIGATION;PROPERTY SOLD"AS-IS"...................................................................................................................21
5. INDEMNITY,NO FINANCING CONTINGENCY......................................................................................................26
5.1 INDEMNITY...................................................................................................................................................................26
5.2 NO FINANCING CONTINGENCY.....................................................................................................................................26
6. TITLE: SURVEY..............................................................................................................................................................27
6.1 SURVEY........................................................................................................................................................................27
6.2 PERMITTED EXCEPTIONS..............................................................................................................................................27
6.3 ALTA POLICY: ENDORSEMENTS.................................................................................................................................27
7. CLOSING..........................................................................................................................................................................28
7.1 TIME AND PLACE OF CLOSING......................................................................................................................................28
7.2 DEVELOPER'S CONDITIONS PRECEDENT TO CLOSING...................................................................................................28
7.3 THE AGENCY'S CONDITIONS PRECEDENT.....................................................................................................................29
7A ADDITIONAL CLOSING CONDITIONS.............................................................................................................................31
7.5 PROCEDURES FOR CONVEYANCE OF PROPERTY FROM AGENCY TO DEVELOPER..........................................................31
8. DEVELOPMENT OF THE PROJECT..........................................................................................................................33
8.1 SCOPE OF DEVELOPMENT.............................................................................................................................................33
8.2 TIMING AND CONDITIONS OF PROJECT DEVELOPMENT................................................................................................34
November 10,2005
11
8.3 LAND USE MATTERS....................................................................................................................................................35
8.4 FINANCIAL STATUS......................................................................................................................................................36
8.5 DESIGN APPROVAL.......................................................................................................................................................37
8.6 CONSTRUCTION COVENANTS.......................................................................................................................................40
8.7 AGENCY RIGHTS OF ACCESS........................................................................................................................................40
8.8 DISCLAIMER OF RESPONSIBILITY BY AGENCY..............................................................................................................40
8.9 CC&Rs........................................................................................................................................................................41
8.10 LOCAL, STATE AND FEDERAL LAWS............................................................................................................................41
8.11 TAXES,ASSESSMENTS,ENCUMBRANCES AND LIENS...................................................................................................41
9. CERTIFICATE OF COMPLIANCE..............................................................................................................................41
9.1 COMPLETION: SCHEDULE OF PERFORMANCE...............................................................................................................41
9.2 ISSUANCE OF CERTIFICATE OF COMPLIANCE................................................................................................................41
9.3 CONCLUSIVE PRESUMPTION.........................................................................................................................................42
9.4 RELEASEOFBONDS. ....................................................................................................................................................42
9.5 NOT EVIDENCE.............................................................................................................................................................42
9.6 CONDITIONS PRECEDENT TO ISSUANCE OF CERTIFICATE OF COMPLIANCE. .................................................................42
9.7 AGENCY OBLIGATIONS................................................................................................................................................43
10. INDEMNIFICATION AND ENVIRONMENTAL PROVISIONS..............................................................................43
10.1 DEVELOPER'S INDEMNIFICATION..................................................................................................................................43
10.2 ENVIRONMENTAL INDEMNITY......................................................................................................................................44
10.3 DURATION OF INDEMNITIES. .................................................. ... .............................................................................. ..44
10.4 CLAIM RESPONSE.........................................................................................................................................................44
10.5 RELEASE NOTIFICATION AND REMEDIAL ACTIONS......................................................................................................44
11. INSURANCE.....................................................................................................................................................................45
11.1 REQUIREDINSURANCE.................................................................................................................................................45
11.2 GENERAL INSURANCE REQUIREMENTS........................................................................................................................46
12. COVENANTS AND RESTRICTIONS...........................................................................................................................47
12.1 USECOVENANT............................................................................................................................................................47
12.2 MAINTENANCE COVENANT..........................................................................................................................................47
12.3 NONDISCRNAINATION AND EQUAL OPPORTUNITY........................................................................................................48
12.4 DEED RESTRICTIONS/COVENANTS RUNNING WITH THE LAND.....................................................................................49
13. DEED RESTRICTION FOR LIVE-WORK UNITS.....................................................................................................49
14. POTENTIAL AND MATERIAL DEFAULTS...............................................................................................................49
14.1 POTENTIAL DEFAULTS. ................................................................................................................................................49
14.2 MATERIAL DEFAULTS..................................................................................................................................................49
14.3 FAILURE OR DELAY IN NOTICE.....................................................................................................................................52
14.4 DEVELOPER INFORMATION AND PRODUCTS.................................................................................................................52
14.5 FAILURE TO TIMELY PAY AMOUNTS DUE....................................................................................................................52
15. NONOCCURRENCE OF A CLOSING CONDITION.................................................................................................53
15.1 FAILURE OF A CLOSING CONDITION TO OCCUR ABSENT A MATERIAL DEFAULT.........................................................53
15.2 FAILURE TO CLOSE;MATERIAL DEFAULT OF DEVELOPER...........................................................................................54
15.3 FAILURE TO CLOSE MATERIAL DEFAULT OF AGENCY. ................................................................................................55
15.4 MATERIAL DEFAULT BY BOTH PARTIES.......................................................................................................................56
November 10,2005
ill
16. RIGHT OF REVERSION................................................................................................................................................57
16.1 RIGHT OF REVERSION...................................................................................................................................................57
16.2 PRIORITY OF THE AGENCY'S RIGHT OF REVERSION......................................................................................................59
17. GENERAL PROVISIONS...............................................................................................................................................61
17.1 CONSENT TO JURISDICTION..........................................................................................................................................61
17.2 LEGAL FEES AND COSTS. .............................................................................................................................................61
17.3 MODIFICATIONS OR AMENDMENTS..............................................................................................................................62
17.4 APPLICABLELAW.........................................................................................................................................................62
17.5 FURTHER ASSURANCES................................................................................................................................................62
17.6 RIGHTS AND REMEDIES ARE CUMULATIVE...................................................................................................................62
17.7 NOTICES,DEMANDS AND COMMUNICATIONS BETWEEN THE PARTIES.........................................................................62
17.8 FORCE MAJEURE DELAY..............................................................................................................................................63
17.9 CONFLICT OF INTEREST................................................................................................................................................65
17.10 NON-LIABILITY OF AGENCY OFFICIALS AND EMPLOYEES............................................................................................65
17.11 INSPECTION OF BOOKS AND RECORDS. ........................................................................................................................65
17.12 APPROVALS..................................................................................................................................................................66
17.13 REAL ESTATE COMMISSIONS........................................................................................................................................66
17.14 DATE AND DELIVERY OF AGREEMENT.........................................................................................................................66
17.15 SURVIVAL OF COVENANTS...........................................................................................................................................66
17.16 CONSTRUCTION AND INTERPRETATION OF AGREEMENT. .............................................................................................66
17.17 TIME OF ESSENCE.........................................................................................................................................................67
17.18 FEES AND OTHER EXPENSES........................................................................................................................................68
17.19 NO PARTNERSHIP.........................................................................................................................................................68
17.20 COMPLIANCE WITH LAW.......................................................... . ................................................................................68
17.21 BINDING EFFECT..........................................................................................................................................................68
17.22 NO THIRD PARTY BENEFICIARIES. ...............................................................................................................................68
17.23 COUNTERPARTS. ..........................................................................................................................................................68
17.24 AUTHORITY OF SIGNATORIES TO AGREEMENT.............................................................................................................68
17.25 ENTIRE AGREEMENT,WAIVERS AND AMENDMENTS....................................................................................................69
17.26 APPROVAL PROCEDURES.................................................... . ..... ................................................................ ... ........... 69
November 10,20D5
IV
LIST OF EXI3IBITS
EXHIBIT NO. IA MAP OF THE SHOPPING CENTER
EXHIBIT NO. I LEGAL DESCRIPTIONS OF THE AGENCY PARCEL
AND THE DEVELOPER PARCEL
EXHIBIT NO. 1 C SUMMARY OF APPRAISAL OF AGENCY PARCEL
EXHIBIT NO. ID SUMMARY OF PROJECT REMEDIATION COSTS
EXHIBIT NO. 2 GLOSSARY OF DEFINED TERMS
EXHIBIT NO. 3 MEMORANDUM OF DDA
EXHIBIT NO. 4 GRANT DEED TO DEVELOPER
EXHIBIT NO. 5 PRELIMINARY TITLE REPORT
EXHIBIT NO. 6 SCHEDULE OF PERFORMANCE
EXHIBIT NO. 7 SCOPE OF DEVELOPMENT
EXHIBIT NO. 8 METHOD OF FINANCING
EXHIBIT NO. 9 FORM OF CERTIFICATE OF COMPLIANCE
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DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (the "Agreement") is entered into as of
, 2005 (the "Effective Date") by and between the COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS (as defined in Section 1.4.1, the
"Agency") and GEIGER, LLC (as defined in Section 1.4.2, the 'Developer"). The Agency and the
Developer are sometimes referred to herein individually as a "Party" and collectively as the "Parties." The
Parties agree as follows:
1. Subject and Purpose of Agreement; Parties, Applicable Requirements.
1.1 Background Regarding the Project.
1.1.1 The real property that is the subject of this Agreement is located within the Ramon-
Bogie Redevelopment Project Area, now a part of Merged Project Area #1, and consists of an
approximately 38 acre vacant property at the northeast corner of Gene Autry Trail and Ramon Road (the
"Shopping Center" or the "Site," as shown on the "Site Map," Exhibit "A" to this Agreement). The Site is
divided into two ownerships, the "Agency Parcel," which the Agency owns in fee, and the "Developer
Parcel," which the Developer owns in fee. The Agency Parcel and the Developer Parcel are shown on
Exhibit 1A. The legal descriptions of the Agency Parcel and the Developer Parcel are provided in Exhibit
1B to this Agreement.
1.1.2 On April 4, 2002, the Agency entered into an Exclusive Agreement to Negotiate
with Developer. On April 16, 2003 and March 17, 2004, Agency and Developer executed Amended and
Restated Exclusive Agreements to Negotiate. The agreements dated April 4, 2002, April 16, 2003, and
March 17, 2004, are collectively referred to in this Agreement as the "Negotiation Agreements." The
agreement dated March 17, 2004 is referred to in this Agreement as the"EAN."
1.1.3 On March 17, 2004, the Agency entered into a License Agreement for the
Performance of Remediation Work with Developer for the remediation of enviromnental contamination on
the Agency Parcel (the "License Agreement"). The License Agreement allowed the Developer to access the
Agency Parcel and remediate the soil conditions of the Agency Parcel in a manner provided under law.
Developer undertook such remediation entirely at its own risk except that the Parties agreed that if the
Agency approved a DDA subsequent to Developer's completion of the remediation and approval and/or
acceptance of the remediation by all appropriate state agencies, including the California Department of
Toxic Substances Control ("DTSC"), the value of Developer's costs incurred with the remediation would
be credited against the purchase price that developer would pay the Agency to acquire the Agency Parcel
pursuant to the terns of the DDA. The License Agreement was extended pursuant to the terns of the First
Amendment to License, dated March 16, 2005, and Amendment No. 2 to License dated October 5, 2005,
between the Parties.
1.1.4 The Agency desires to effectuate the Redevelopment Plan for Ramon-Bogie
Redevelopment Project Area, now a part of Merged Project Area 91 (the Project Area") by providing for
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t
the development of a regional retail shopping center featuring a "big box" retail user on the Site (the
"Project").
1.2 Purpose of the Agreement. The purpose of this Agreement is to (a) effectuate the
Agency's Redevelopment Plan for the Project Area in accordance with the terns and conditions set forth in
this Agreement, (b) to provide for the disposition by the Agency of the Agency Parcel to the Developer,
and the maintenance of such land by the Developer, consistent with the general provisions and goals as
identified in the EAN and the License Agreement as amended. (c) to provide for the development and
construction of the Project by the Developer on the Site, including the construction of necessary or
appropriate rights-of-way and other public improvements, (d) to impose certain covenants, conditions, and
restrictions upon the Site and upon the development thereof and upon Developer and each Successor
Owner in order to assure the development, use, operation, and maintenance of the Site as a Class A
Shopping Center as further required by this Agreement. All undertakings pursuant to this Agreement are
for the purpose of development of the Project and not for speculation in land holding. The fulfillment of
this Agreement is in the vital and best interests of the Palm Springs community and the health, safety, and
welfare of its residents, and is in accord with the public purposes and provisions of applicable federal, state,
and local laws and requirements.
1.3 Scope of Agreement.
1.3.1 This Agreement provides for the disposition by the Agency to the Developer of the
Agency Parcel. Subject to approval of Entitlements, Developer shall be required to develop and construct
the Project on the Site. This Agreement further provides for the Project to consist of construction and
installation of the following Project Improvements, all of which collectively constitute the Project.
(a) Private Improvements. The Private Improvements are more specifically
described in the Glossary of Defined Terns attached hereto as Exhibit "No. 2" and the Scope of
Development attached hereto as Exhibit"No. 7."
(b) Public Improvements. The dedication and construction of certain public
improvements as further described in the Glossary of Defined Terms attached hereto as Exhibit "No. 2"
and the Scope of Development, attached hereto as Exhibit "No. 7."
1.4 Parties to the Agreement.
1.4.1 Ate. The Agency is a state agency organized for local purposes (Health and
Safety Code Sections 33000 et. seq.). It is a public body, corporate and politic. The City Council of the
City of Palm Springs serves as the legislative body of the Agency. The principal office of the Agency and
mailing address is: 3200 E. Tahquitz Canyon Way, Palm Springs, CA, 92262.
1.4.2 Developer. The Developer is Geiger, LLC, located at: 1888 Century Park East, 41h
Floor, Century City, CA, 90067. Its managing member is John J. Carroll. Whenever the term "Developer"
is used in this Agreement, such teen shall be limited to Geiger, LLC, which is the Developer as of the
Effective Date, or, following an Ownership Transfer pursuant to a Permitted Transfer approved by the
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2
Agency, to any assignee of or successor to the Developer's rights, powers, and responsibilities permitted by
this Agreement.
1.4.3 Relationship of Agency to Developer.
(a) It is hereby acknowledged that the relationship of the Agency to the
Developer is neither that of a partnership nor that of a joint venturer and that the Agency shall not be
deemed or construed for any purpose to be the agent of the Developer, nor shall the Developer be deemed
or construed to be the agent of the Agency.
(b) Notwithstanding any provision of this Agreement, the Developer is not, and
shall not be deemed to be, the agent of the Agency for any purpose, and shall not have the power or the
authority to bind the Agency to any contractual or other obligation. Until Close of Escrow has occurred, the
Developer may characterize itself to third parties as the prospective purchaser and developer of the
Agency Parcel. The Developer shall not at any time hold itself out to the Agency or to any other third party
as an agent of the Agency, and shall not, by any act or omission, mislead any third party into believing, or
allow any third party to continue in the mistaken belief, that the Developer is an agent of the Agency or has
the power or authority to bind the Agency to any contractual or other obligation.
1.5 Local Governmental Requirements Applicable to Agreement. This Agreement is
subject to all Governmental Regulations, including the City of Palm Springs General Plan, the Palm
Springs Municipal Code and ordinances, and the Agency's Redevelopment Plan enacted prior to the
Effective Date.
1.6. Not a Development Agreement. This Agreement is not a Development Agreement as
provided in California Govermnent Code Section 65864 and, is not a grant of any entitlement, permit, land
use approval, or vested right in favor of the Developer, the Project, or the Site. The Agency shall cooperate
in good faith, within applicable legal constraints and consistent with applicable Agency policies, and take
such actions as may be necessary or appropriate to effectuate and carry out this Agreement in a timely and
cormnercially reasonable manner.
1.7 Definitions: Attachments. Capitalized terms used herein, including terns in the
Attachments attached hereto, unless otherwise defined herein, shall have the respective meanings set forth
herein/or as specified in the Glossary of Defined Terns attached hereto as Exhibit "No. 2." Unless
otherwise indicated, references in this Agreement to sections, paragraphs, clauses, exhibits, attaclmients
and schedules are to the same that are contained within or attached to this Agreement and all attachments
and schedules referenced herein are incorporated herein by this reference as through fully set forth herein.
2. Prohibition Against Change in Ownership, Management and Control of Developer.
2.1 Importance of Developer Qualifications. The Developer represents and agrees that its
undertakings pursuant to this Agreement are for the purpose of development of the Project and not for
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speculation in land holding. The Developer further recognizes that the qualifications and identity of the
Developer are of particular concern to the Agency and community in light of the following:
(a) The importance of the development of the Project to the fulfillment of the Agency's
Redevelopment Plan and the general welfare of the community;
(b) The fact that a change in ownership or control of the Developer or of its members, or
any other act or transaction involving or resulting in a significant change in ownership control of the
Developer or the degree of control thereof as described in this Article 2 is for practical purposes a transfer
or disposition of the property then owned by the Developer;
(c) That it is because of the qualifications and identity of the Developer and its key
personnel that the Agency is entering into the Agreement with the Developer.
2.2 Ownership Transfer or Assignment.
2.2.1 Restrictions on Rights and Powers under Agreement. For the reasons set forth in
Section 2.11 the Developer acknowledges and agrees that no voluntary or involuntary successor in interest
of the Developer shall acquire any rights or powers under this Agreement except as set forth in this Section
2.2.
2.2.2 Restrictions on Ownership Transfers and Assignments. For the reasons set forth in
Section 2.1, the Developer represents and agrees for itself, its members and all voluntary and involuntary
successors-in-interest of itself and each member of Developer, that the Developer shall not effect any total
or partial Ownership Transfer of the Developer Parcel, except as provided in Section 2.5, or the
Developer's interest in this Agreement, or any interest therein, whether voluntary or involuntary, nor shall
there be a Transfer of Control of the Developer (as described below in Section 2.3) unless such Ownership
Transfer or Transfer of Control is a Permitted Transfer. In order for an Ownership Transfer to be a
Permitted Transfer, the following conditions shall be met by Developer:
(a) where required, the prior written consent of the Agency is obtained, subject
to the standards for such consent set forth in Sections 2.2.4 and 2.2.5;
(b) the Developer shall have provided to the Agency at least thirty (30) Business
Days prior to the date of any proposed Ownership Transfer: (i) the name of the proposed Ownership
Transferee, (ii) all of the material terms of the transfer, (iii) current audited financial statements of the
proposed transferee, (iv) the names of all Persons who own, directly or indirectly, a five percent (5%) or
more interest in the proposed Ownership Transferee, (v) a statement describing other real estate projects
developed by, or sold by the proposed Ownership Transferee in California over the preceding five (5) year
period, and the dates of involvement by the proposed Ownership Transferee with such projects and the
success of the projects, which statement shall be made under penalty of perjury by the manager, president
or other person with appropriate authority from the proposed Ownership Transferee to do so, (vi) all
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4
relevant instruments and other legal documents proposed to effect any such transfer, and (vii) such other
relevant information that the Agency may reasonably request; and
(c) The Ownership Transferee shall execute a written assumption of this
Agreement in accordance with Section 2.2.8, and shall be approved by the Agency.
2.2.3 Condition to Release of Developer from Obligations Under this Agreement. In the
absence of(a) an express written assumption by an Ownership Transferee in accordance with Section 2.2.8
of the obligations of the Developer, which assumption shall be approved by the Agency, (b) specific prior
written agreement by the Agency to an Ownership Transfer requiring Agency consent, pursuant to which
the Agency expressly releases the Developer, or (c) execution by the Agency and recordation in the
Official Records of a Certificate of Compliance, no Ownership Transfer shall constitute a release of the
Developer from any of its obligations under this Agreement.
2.2.4 Prior to Recordation of Certificate of Compliance.
(a) Except as set forth in Sections 2.2.4 (b), 2.5, and 2.7, prior to the recordation
of a Certificate of Compliance, an Ownership Transfer shall require the approval of the Agency in its sole
discretion and the Agency may withhold its consent to any proposed Ownership Transfer for any reason
whatsoever.
(b) Notwithstanding the provisions of Section 2.2.4(a) or any provision of this
Agreement, foreclosure of any Pennitted Mortgage, or any sale thereunder, shall not require the consent of
the Agency or constitute a breach of any provision of or a Material Default under this Agreement.
(c) Notwithstanding the provisions of Section 2.2.4(a) or any provision of this
Agreement, a sale or conveyance by any Permitted Mortgagee or its wholly-owned designee who acquired
title to the Developer Parcel by an Ownership Transfer shall not require the consent of the Agency or
constitute a breach of or a Material Default under this Agreement, provided that the transferee: (i) has a
reputation as a quality regional commercial builder licensed to do business in the State of California; (ii)
has a reputation for fair and honest business dealings with persons or entities generally; (iii) has a sufficient
net worth to undertake the obligations to be performed by Developer; (iv) has successfully developed and
managed regional commercial development in the State of California; and (v) assumes the obligations of
Developer under this Agreement in accordance with Section 2.2.8.
2.2.5 Following Recordation of a Certificate of Compliance. Subsequent to the recordation
of a Certificate of Compliance, a proposed Ownership Transfer shall not require the consent of the Agency.
2.2.6 Restriction on Permitted Transfers. Any purported Ownership Transfer that does not
comply with the provisions of this Section 2.2 shall not be a Pennitted Transfer under this Agreement.
2.2.7 Assignment of Rights to Permitted Mortgagee. Subject to the provisions of Section
2_2 and Section 2.7.2, nothing contained in this Agreement shall restrict the right of Developer to
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5
conditionally or unconditionally assign its rights and obligations under this Agreement to the holder of a
Permitted Mortgage as required to obtain financing for development of the Project on the Developer Parcel.
2.2.8 Written Assumption Agreement Required. Except as provided in Section 2.5 or for
an Ownership Transfer after recordation of the Certificate of Compliance, any Ownership Transfer, other
than an Ownership Transfer of all or any portion of the Developer Parcel pursuant to foreclosure or deed in
lieu of foreclosure to a Permitted Mortgagee or its wholly-owned designee, regardless of whether such
Ownership Transfer is a Permitted Transfer hereunder, shall be null and void unless the Ownership
Transferee shall, at the time of transfer, expressly assumes by written instrument that is satisfactory to the
Agency and in a form that is recordable in the Official Records, for itself and its successors and assigns,
and for the benefit of the Agency, all the obligations of the Developer under this Agreement and agrees to
be subject to all the conditions and restrictions to which the Developer is subject by reason of this
Agreement (the "Assumption Agreement"). The obligation of an Ownership Transferee to enter into an
Assumption Agreement pursuant to this Section 2.2.8 shall cease upon recordation of the Certificate of
Compliance for the Project.
2.2.9 Assignment to a Single Member Entity. Notwithstanding any other provision of this
Section 2, the Developer may freely assign its interests in the Developer Parcel and in this Agreement to a
single member entity, provided that the Developer is the sole member of the entity and the single member
entity complies with the provisions of Section 2.2.8. Such an assignment shall not relieve the Developer of
any of its obligations under this Agreement, and the Agency shall look to the Developer to fully comply
with this Agreement, and to cause the single member entity to comply with this Agreement, as though there
had not been an assignment.
2.3 Change in Management or Control.
2.3.1 The Developer represents and warrants to the Agency that the Developer is a
California limited liability corporation, whose managing members are identified in Section 1.4.2 of this
Agreement.
2.3.2 Transfer of Control. Notwithstanding any other provision of this Agreement, until
execution by the Agency of a Certificate of Compliance and recordation of such instrument in the Official
Records, there shall be no Transfer of Control of the Developer, unless otherwise approved by the Agency
in its sole discretion, which approval may be withheld for any reason whatsoever. "Transfer of Control'
shall include any one or more of the following, whether made directly or through an intermediary, and
whether made in one transaction or in more than one transaction during the Term and whether occurring as
a single event or a series of events which result, on a cumulative basis, in a change in forty-nine percent
(49%) or more of the general partners of the Developer or a change of control of its General Partner which
reduces or adversely impacts the managerial powers of such General Partner.
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6
2.3.3 The Developer shall make prompt and full disclosure to the Agency of any changes
to the Developer's General Partner or any changes to Developer's organizational jurisdiction or structure,
and all other material information concerning the Developer and its partners as related to the Project.
2.3.4 The Developer shall promptly notify the Agency of any and all changes whatsoever
in the identity of the Developer's General Partner identified in Section 1.4.2 who will be directly involved
in the development of the Project, and (b) members in control of the General Partner or the degree thereof,
of which it or any of its managing members have been notified or otherwise have knowledge or
information.
2.3.5 The Developer shall make full disclosure to the Agency of all other material
information concerning the Developer and its partners and consultants related to the Project. The Developer
agrees to substitute any of its consultants and professionals working on the Project as reasonably requested
by the Agency.
2.4 AssiEnment by Operation of Law. Neither this Agreement nor any interest therein shall
be assignable by operation of law (including the transfer of this Agreement by testacy or intestacy). Airy
involuntary assignment shall constitute a Material Default by the Developer. In such event, this Agreement
shall not be treated as an asset of the Developer. The following is a nonexclusive list of acts which shall be
considered an involuntary assignment:
(a) If the Developer is or becomes bankrupt or insolvent or if any involuntary
proceeding is brought against the Developer (unless, in the case of a petition filed against the Developer,
the same is dismissed within ninety (90) days), or the Developer makes an assignment for the benefit of
creditors, or institutes a proceeding under or otherwise seeks the protection of federal or State bankruptcy
or insolvency laws, including the filing of a petition for voluntary bankruptcy or instituting a proceeding
for reorganization or arrangement;
(b) If a writ of attachment or execution is levied on this Agreement or on the Developer
Parcel, or on any portion thereof, where such writ is not discharged within ninety(90) days; or
(c) If, in any proceeding or action in which the Developer is a party, a receiver is
appointed with authority to take possession of the Developer Parcel, or any portion thereof, where
possession is not restored to the Developer within ninety(90) days.
2.5 Remedies For Improper Transfers. Any purported Ownership Transfer that is not a
Permitted Transfer shall, at the election of the Agency, be null and void. If there is any Ownership Transfer
that is not a Pennitted Transfer such Ownership Transfer shall be a Material Default under this Agreement
as of the date of the transfer, which date shall not be extended by Force Majeure Delay. In the event of(a) a
failure by Developer to comply with the requirements of this Section 2 with respect to any Ownership
Transfer or (b) a failure of any Ownership Transferee to execute the assumption agreement required by
Section 2.2.8, the Agency shall have all remedies available to it at law and in equity, including the right to
exercise the Right of Reversion contained in Section 17.
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2.6 Memorandum of DDA; Permitted Mort2a2ee Protection.
2.6.1 Recordation of Memorandum of this Agreement. The Developer shall record a
memorandum of this Agreement in substantially the form and substance of the Memorandum attached
hereto as Exhibit No. 3 (the "Memorandum of DDA") against the Site.
2.6.2 Rieht To Encumber. Notwithstanding any other provision of this Agreement to the
contrary, upon conveyance of the Agency Parcel by the Agency to the Developer, the Developer shall have
the right to encumber the fee title to all or portions of the Site owned by it with a Permitted Mortgage
subject to compliance with the terms, conditions and limitations set forth in this Section 2.7 (Mortgages
complying with the following temms and entered into by Developer with Permitted Mortgagees shall be
deemed to be "Permitted Mortgages"); provided, however that all Mortgages shall be subject and
subordinate to the lien of this Agreement, and the Memorandum of DDA.
2.6.3 Encumbrance Prior to Certificate of Compliance. Until recordation of the Certificate
of Compliance in the Official Records, the following shall apply to every Mortgage with respect to the
Developer Parcel or any portion thereof:
(a) The Developer shall not encumber the Agency Parcel with any Mortgage
without the prior written consent of the Agency in its sole discretion.
(b) The Developer's right to execute and deliver Mortgage(s) shall be limited to a
first trust deed Mortgage executed and delivered to obtain financing necessary to pay costs for developing
and constructing the Private Improvements.
(c) This Agreement and the Agency Parcel shall not be cross-collateralized to
serve as additional security for any other loan by a Mortgagee, which is also secured by real property other
than the Agency Parcel, the Private Improvements thereon, any portion thereof or any interest therein,
without the Agency's consent in its sole discretion; provided, however, that a Permitted Mortgagee which
has .made more than one loan to Developer secured solely by all or any portion of the Developer Parcel
may cross-collateralize those loans.
(d) At least thirty (30) days prior to entering into any Mortgage with any
Mortgagee, the Developer shall deliver to the Agency a proposed Mortgagee's loan documents and such
other information, including the name and current audited financial statements of the proposed Mortgagee,
as may be reasonably necessary for the Agency to confirm the matters described in this Section 2.7.3 and
the Agency shall have the right to review the loan documents to ascertain that they comply with the
following provisions:
(i) For all such Mortgages, that the Mortgagee is or is not an Institutional
Lender and, if the proposed Mortgagee is not an Institutional Lender, the Developer shall provide the
Agency with the following additional information: (i) the names of all Persons who own, directly or
indirectly, a five percent (5%) or more interest in the proposed Mortgagee, (h) a statement describing other
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real estate projects for which financing has been provided by the proposed Mortgagee in California over
the preceding five (5) year period, the dates of involvement be the proposed Mortgagee with such projects
and the success of the projects, which statement shall be made under penalty of perjury by the manager,
president or other person with appropriate authority from the proposed Mortgagee to do so and (iii) such
other relevant information that the Agency may reasonably request.
(ii) The loan documents shall include a subordination and consent
agreement in form satisfactory to the Agency in its reasonable discretion ("Subordination and Consent")
executed by the Permitted Mortgagee in favor of the Agency acknowledging subordination of the Permitted
Mortgage to this Agreement and the applicability of the Right of Reversion and Right of Purchase, in
accordance with Sections 16.2 and 14.2.2 respectively to the Permitted Mortgage following: (A) a Material
Default by the Developer as specified in Section 15.2 and (B) expiration of any relevant Permitted
Mortgagee's cure rights provided in this Agreement and to the New Agreement provisions set forth in
Sections 2.7.24, 2.7.25 and 2.7.26.
(iii) The loan documents shall include a provision requiring (A) the
Mortgagee to provide notice to the Agency concurrently with the provision of any notice to the Developer
of any event which has occurred which is a default under the loan documents or which would trigger the
commencement of any cure periods under the loan documents, and (B) providing the Agency with a right
to cure any such default up to one week before the completion of any foreclosure in accordance with
Section 2.7.12;
(iv) For construction Mortgages for the original construction of the
Private Improvements, the Agency shall have reasonably determined in accordance with the Method of
Financing, Exhibit "No. 8," that the amount of the construction loans provided for in the loan documents,
together with the equity to be committed by the Developer for the construction of the Project, shall be
sufficient to pay for the costs of constructing the Project in accordance with the construction budget,
including appropriate construction contingencies reflected in such loan documents.
(f) There shall be recorded in the Official Records at the time of closing of the
Mortgage the Subordination and Consent executed and acknowledged by the Mortgagee;
(g) Mortgages meeting the above requirements and (i) made with Mortgagees
determined by the Agency, in its reasonable discretion, to be Institutional Lenders shall be deemed to be
Permitted Mortgages (and the Mortgagees thereof Pennitted Mortgagees) without further consent of the
Agency, and (ii) made with Mortgagees determined by the Agency, in its reasonable discretion, to be
Non-Institutional Lenders, shall be deemed to be Permitted Mortgages (and the Mortgagees thereof
Permitted Mortgagees) only with the consent of the Agency in its sole discretion.
(h) No Mortgage shall be a Permitted Mortgage and no Mortgagee shall be a
Permitted Mortgagee or be entitled to the protections provided to Permitted Mortgagees under this
Agreement unless such proposed Mortgagee and its Mortgage has been reviewed and, if required,
consented to, by the Agency pursuant to this Section 2.7.3.
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2.6.4 Right to Encumber Following Recordation of Certificate of Compliance. Following
recordation of the Certificate of Compliance in the Official Records, there shall be no restriction on the
right of the Developer to encumber fee title to the portions of the Developer Parcel owned by it with any
Mortgage, and Agency consent to such Mortgage shall not be required.
2.6.5 The Agency's Acknowledgment of Permitted Mortgagee. Within thirty (30) days
following the Developer's delivery of the loan documents and information required under Section 2.7.3, the
Agency shall acknowledge receipt of the name and address of any Mortgagee (or proposed Mortgagee),
and either (a) confirm to the Developer and such Mortgagee that such Mortgagee is (or would be, upon
closing of its loan) a Permitted Mortgagee and has (or would have) all the rights of a Permitted Mortgagee
under this Agreement and is (or would be) an Institutional Lender, if applicable, or (b) if the Agency
reasonably determines that any proposed Mortgagee does not or would not qualify as such or as an
Institutional Lender or meet the other criteria set forth in Section 2.7.3 give notice of such determination to
the Developer and the proposed Mortgagee, which notice shall specify the basis for such determination.
2.6.6 Change in Loan Documents. Once the Agency has approved loan documents and the
Subordination and Consent as satisfying the requirements of Section 2.7.3, the Developer shall not modify
or agree to modify those loan documents in a manner affecting the requirements of Section 2.7.3 without
the prior written approval of the Agency in its sole discretion.
2.6.7 Initial Notice. If the Developer enters into any Mortgage(s) reviewed and, if
required, consented to, by the Agency pursuant to Section 2.7.3, then the Mortgagee(s) thereunder, if
confrnned by the Agency as Permitted Mortgagee(s) pursuant to Section 2.7.3 shall be entitled to the
Permitted Mortgagee protections provided for under this Agreement from and after such time as the
Developer or such Pennitted Mortgagee has provided the Agency notice, in accordance with the provisions
of Section 17.7, of the name and address of such Mortgagee, accompanied by a copy of the executed
Mortgage.
2.6.8 Effect of a Mortgage. The Developer's recordation of a Mortgage shall not constitute
an assignment or transfer of the Agency Parcel, nor shall any Mortgagee, as such, or in the exercise of its
rights under its Mortgage or this Agreement, be deemed to be an assignee or transferee or mortgagee in
possession of the Agency Parcel so as to require such Mortgagee to assume or otherwise be obligated to
perform any of the Developer's obligations under this Agreement.
2.6.9 Foreclosure Without the Agency's Consent. Neither the foreclosure of any Permitted
Mortgage (or any sale thereunder), whether by judicial proceedings or by virtue of any power contained in
any such Permitted Mortgage, nor any conveyance of the Developer Parcel and/or Project Improvements
from Developer to any Permitted Mortgagee or its designee through, or in lieu of, foreclosure or other
appropriate proceedings in the nature thereof, shall require the consent of the Agency or constitute a breach
of any provision of, or a Potential Default or a Material Default under, this Agreement. If a Permitted
Mortgagee or its wholly-owned designee does acquire the portion of the Developer Parcel being foreclosed
upon, the provisions of Section 2.7.11 shall govern such acquisition and the rights and obligations of the
Permitted Mortgagee or designee. If a Permitted Mortgagee or its wholly-owned designee does not acquire
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the portion of the Developer Parcel being foreclosed upon, or if it does acquire such portion of the
Developer Parcel but then subsequently sells or conveys all or any portion of the Developer Parcel acquired
by such Permitted Mortgagee or designee by foreclosure or deed in lieu thereof, then upon such
foreclosure, sale or conveyance, (a) all of the provisions contained in this Agreement shall be binding upon
and benefit the Person who acquires title to all or any portion of the Developer Parcel and (b) the Agency
shall recognize the purchaser or other transferee in connection therewith as the Developer under this
Agreement; provided that such Person shall, as a condition of such recognition, assume the obligations of
the Developer under this Agreement in accordance with Section 2.2.8.
2.6.10 Rights and Obligations of Permitted Mortgagee Acquiring Title.
(a) Except as set forth in Section 2.7.9, a Pennitted Mortgagee or its wholly
owned designee obtaining title to all or any portion of the Developer Parcel as a result of a default by the
Developer under a Permitted Mortgage shall not be obligated to perform any of the Developer's obligations
under this Agreement, including without limitation to construct or complete the Project Improvements or to
guarantee such construction or completion thereof; provided, however, that except as set forth in this
Section 2.7.10(d), with respect to protective activities or preservation or protection of existing Project
Improvements, nothing in this Agreement shall be deemed or construed to permit or authorize any
Permitted Mortgagee or its designee to devote the Site or any part thereof to any uses, or to construct any
improvements thereon, other than those uses and or Project Improvements provided for or authorized by
this Agreement and (ii) any and all construction of improvements on the Developer Parcel by the Permitted
Mortgagee or its designee shall be carried out in accordance with all the terns and conditions of this
Agreement, including without limitation, Section 2.7.10(b).
(b) No Permitted Mortgagee or its designee shall be permitted or authorized to
undertake the construction of the Private hnprovements without first having expressly assumed the
obligations of Developer for the portion of the Site in which the Pennitted Mortgagee or its designee has an
interest, by written agreement reasonably satisfactory to the Agency provided, however, the Permitted
Mortgage shall be entitled at all times to take such actions necessary to preserve or protect existing Project
Improvements, but such shall not include the right to undertake new construction except as necessary to
protect exposed elements of such previously constructed Project Improvements. Upon such assumption,
the Permitted Mortgagee or its wholly-owned designee, in that event, must agree to complete, in the
manner provided in this Agreement, the Project Improvements to which the lien or title of such Permitted
Mortgagee relates. Any such Permitted Mortgagee or designee properly completing such Project
Improvements and satisfying all other conditions precedent thereto, shall be entitled, upon written request
made to the Agency, to a Certificate of Compliance from the Agency for such Project Improvements.
(c) In the event that a Permitted Mortgagee, or its wholly-owned designee, is in
possession and/or control of such portion of the Site in which the Permitted Mortgagee has au interest, and
the Permitted Mortgagee assumes the obligation of Developer under this Agreement, such Pennitted
Mortgagee shall only be bound to perform Developer's obligations hereunder to the extent of its interest in
the portion of the Developer Parcel and the Project Improvements thereon.
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(d) Upon obtaining title to the Site or any portion thereof, and notwithstanding
any other provision of this Agreement to the contrary, each Permitted Mortgagee, or its wholly-owned
designee, as the case may be, shall, even if it does not assume the obligation of Developer under this
Agreement, be obligated to perform the following with respect to the portion of the Site owned by it:
(i) keep the real property taxes current;
(ii) abate weeds and other hazards and nuisances on the Site, in a
commercially reasonable manner;
(iii) maintain liability insurance in commercially reasonable amounts;
(iv) erect and maintain barricades and fencing as reasonably necessary to
protect the public; and
(v) maintain erosion control in a commercially reasonable manner.
2.6.11 No Impact on Lien. Except with respect to the Right of Reversion provisions
contained in Section 16.2 and the Right of Purchase provisions contained in Section 14.2.2, breach of any
of the covenants, conditions, restrictions, or reservations contained in this Agreement shall not defeat or
render invalid the lien of any Permitted Mortgage made in good faith and for value as to the Site or any
portion of the Site or interest therein. Unless otherwise herein provided, the teams, conditions, covenants,
restrictions, and reservations of this Agreement shall be binding and effective against the Permitted
Mortgagee and any owner of the Site, or any portion of the Site, whose title thereto is acquired by
foreclosure, trustee's sale, or otherwise.
2.6.12 Right of The Agency to Cure Mortgage; Other Conveyance for Financing Default. In
the event of an uncured event of default by the Developer under a Permitted Mortgage for financing of the
Site or the Project prior to the issuance of a Certificate of Compliance, and so long as the Penmitted
Mortgagee has not exercised its option to assume the obligations hereunder and complete the Project
Improvements, the Agency may, at its option, but shall not be obligated to, cure the default at any time, up
to one week (5 business days) prior to completion of any foreclosure. In such event, the Agency shall be
entitled to reimbursement by Developer of all direct and actual costs and expenses incurred by Agency in
curing the default.
2.6.13 Notice to Mortgagees. A Permitted Mortgagee under any Permitted Mortgage
affecting a portion of the Site shall be entitled to receive concurrent notice of any default by any party
hereunder provided that such Permitted Mortgagee shall have delivered a written request for such notice of
default to the Party from whom the Permitted Mortgagee wishes to receive notice of a default, specifying
both the Permitted Mortgagee's name and address and the name of the Party as to whose default the
Permitted Mortgagee wishes to receive such notice of. Failure of a Party to deliver a concurrent copy of
such notice of default to the Permitted Mortgagee shall not affect in any way the validity of the notice of
default as it relates to the defaulting Party, but in any subsequent proceeding arising from the notice of
default without the requested concurrent notice to the Permitted Mortgagee, the interest of the Permitted
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Mortgagee and its lien upon the affected Parcel shall not be affected in any way until such time as it has
received proper notice and all cure periods with respect thereto have expired. Any such notice to a
Permitted Mortgagee shall be given in the same manner as provided in Section 17.7. The giving of any
notice of default or the failure to deliver a copy to any Pennitted Mortgagee shall in no event create any
liability on the part of the Person so declaring a default.
2.6.14 Right of Pennitted Mortgagee to Cure. Notwithstanding anything to the contrary
contained in this Agreement, if the Site is encumbered by a Pennitted Mortgage(s) and if the Permitted
Mortgagee(s) of such Permitted Mortgage(s) shall send to the Agency a true copy thereof, together with
written notice specifying the name and address of the Mortgagee(s) and the pertinent recording data with
respect to such Mortgage(s), the Agency agrees that, subject to its Right of Reversion and Right of
Purchase contained in this Agreement, so long as any such Permitted Mortgage(s) shall remain unsatisfied
of record or until written notice of satisfaction is given by the Pennitted Mortgagee(s) to the Agency each
Permitted Mortgagee the following provisions shall apply:
(a) Each Permitted Mortgagee shall have the right, but not the obligation, at any
time prior to termination of this Agreement and without payment of any penalty, to cure or remedy such
Potential Default or Material Default, to effect any insurance, to pay any amounts due to the Agency, to
make any repairs or improvements, to do any other act or thing required of Developer under this
Agreement, and to do any act or thing which may be necessary and proper to be done in the performance
and observance of this Agreement to prevent termination of this Agreement. To carry out the foregoing, the
Developer hereby agrees that each Pennitted Mortgagee and its agents and contractors shall have full
access to the Site for purposes of accomplishing any of the foregoing. Any of the foregoing done by any
Pennitted Mortgagee shall be as effective to prevent a termination of this Agreement as the same would
have been if done by Developer.
(b) Notwithstanding any other provision of this Agreement to the contrary, if any
Potential Default or Material Default shall occur which, pursuant to any provision of this Agreement,
entitles the Agency to terminate this Agreement or to exercise its Right of Reversion, the Agency shall not
be entitled to terminate this Agreement or to revest any portion of the Site as to any Pennitted Mortgagee,
unless (i) the Agency, following the expiration of any periods of time given Developer in this Agreement to
cure such Potential Default or Material Default, shall have given written notice to such Permitted
Mortgagee stating the Agency's intent to terminate this Agreement, and (ii) within ninety (90) days after
delivery of such notice, such Pennitted Mortgagee shall fail to either:
(i) cure the Potential Default or Material Default if the same
consists of the nonperformance by Developer of any covenant or condition of this Agreement requiring the
payment of money by Developer to the Agency; or
(ii) if the Potential Default or Material Default does not involve a
covenant or condition of this Agreement requiring the payment of money by the Developer to the Agency,
either, in Permitted Mortgagee's sole discretion, (a) cure such Potential Default or Material Default, or
(b)(i) commence, or cause any trustee under the Pennitted Mortgage to commence, within ninety (90) days
after the provision of written notice by the Agency to the Pennitted Mortgagee as provided above, and
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thereafter to diligently pursue to completion steps and proceedings to foreclose on the interests covered by
the Permitted Mortgage, and (ii) perform or cause the performance of all of the covenants and conditions of
this Agreement requiring the payment of money by the Developer to the Agency, until such time as the
Developer Parcel and/or Project hnprovements shall be sold upon foreclosure pursuant to the Permitted
Mortgage or shall be transferred upon judicial foreclosure or by deed or assigmnent in lieu of foreclosure.
Any Potential Default or Material Default which does not involve a covenant or condition of this
Agreement requiring the payment of money by the Developer to the Agency shall be deemed cured if any
Permitted Mortgagee shall diligently pursue to completion steps and proceedings to foreclose under the
Permitted Mortgage as provided above and shall, upon acquiring title to all or any portion of the Developer
Parcel, thereafter undertake its obligations with respect to the portion of the Site owned by it pursuant to
Section 2.7.10.
(c) If any Permitted Mortgagee is prohibited from commencing or prosecuting
foreclosure or other appropriate proceedings in the nature thereof by any process or injunction issued by
any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency
proceeding involving Developer, the times specified in Section 2.7.14(b) above, for commencing or
prosecuting foreclosure or other proceedings shall be extended for the period of the prohibition; provided
that the Permitted Mortgagee shall have fully cured any Potential Default or Material Default required by
Section 2.7.14(b) above and shall continue to perform and/or cure all such obligations as and when the
same fall due.
(d) No Permitted Mortgagee shall have the right to use the failure of the Agency
to provide notice to any other Permitted Mortgagee as a claim, defense or estoppel to application of these
provisions with respect to its Mortgage.
2.6.15 Failure of Permitted Mortgagee to Complete Project hnprovements. If, after all cure
periods of Developer have expired following Material Default by Developer in Completion of construction
of the Project Improvements on the Site under this Agreement, and the notice required by Section 2.7.14 to
a Permitted Mortgagee was properly given, and such Permitted Mortgagee has not cured or commenced to
cure as required by Section 2.7.14, the Agency may, at its option, upon thirty (30) days' written notice to
the Developer and such Pennitted Mortgagee either: (a) purchase the Permitted Mortgage by payment to
the Pennitted Mortgagee of the amount of the unpaid debt plus accrued but unpaid interest and other
advances and amounts secured by the security interest; (b) exercise its Right to Purchase the Site pursuant
to Section 14.2.2, or (c) if all Revesting Conditions have occurred with respect to the Site or any portion
thereof, exercise its Right of Reversion with respect to the applicable portions of the Site pursuant to
Section 16.
2.6.16 Amendment; Termination. No amendment or modification to this Agreement made
without the consent of any Permitted Mortgagee of any portion of the Site shall be binding upon such
Permitted Mortgagee or its successors in interest. Developer shall not terminate this Agreement as to any
portion of the Site which is subject to any Permitted Mortgage without first obtaining the prior written
consent of all Permitted Mortgagees whose Permitted Mortgages encumber that portion of the Developer
Parcel.
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2.6.17 Condemnation or Insurance Proceeds. Except as otherwise expressly set forth in this
Agreement, the rights of any Permitted Mortgagee, pursuant to its Permitted Mortgage, to receive
condemnation or insurance proceeds which are otherwise payable to such Permitted Mortgagee or to a
Party which is its mortgagor shall not be impaired.
2.6.18 Loss Payable Endorsement to Insurance Policy. The Agency agrees that the name of
the most senior Permitted Mortgagee may be added as the primary loss payee to the "Loss Payable
Endorsement" attached to any and all insurance policies required to be carried by Developer under this
Agreement.
2.6.19 Modification of Article: Conflicts. Following the Close of Escrow, no Party shall
unreasonably withhold its consent to such modifications of this Agreement as are reasonably requested by a
Permitted Mortgagee, provided that the rights of any such Party will not be materially impaired,
diminished, limited, or delayed, nor the obligations of such Party increased in any material respect as a
result of such modifications. Notwithstanding the foregoing, the Developer and the Agency hereby agree
that the Agency shall have no obligation to make any modifications to this Agreement pursuant to this
Section prior or as a condition to Close of Escrow.
2.6.20 No Subordination. This Agreement shall not be subordinated to any Mortgage,
ground lease, or other instrument without the express written consent of the Parties hereto and all
Mortgagees of the Parties, each in its sole discretion.
2.6.21 Constructive Notice and Acceptance. Until such time as a Certificate of Compliance
is recorded in the Official Records with respect to the Site, all of the provisions contained in this
Agreement shall be binding upon and benefit any Person who acquires title to a portion of the Site by
voluntary or involuntary transfer, foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise under
a Mortgage and each successor and assign of such Person acquiring an interest in any portion of the Site.
Upon acquisition of title to a portion of the Site by a Person acquiring title through foreclosure, trustee's
sale, or deed in lieu of foreclosure or through sale, transfer or conveyance by any Permitted Mortgagee or
its wholly-owned designee following its acquisition of title through foreclosure, trustee's sale or deed in
lieu of foreclosure, the acquiring Person and the Agency shall meet and confer in good faith to revise the
Schedule of Performance as reasonably necessary to provide adequate time for such Person to satisfy the
obligations of the Developer hereunder.
2.6.22 Bankruptcy Affecting the Developer. If the Developer, as debtor in possession, or a
trustee in bankruptcy for the Developer rejects this Agreement in connection with any proceeding
involving the Developer under the United States Bankruptcy Code or any similar state or federal statute for
the relief of debtors (a "Bankruptcy Proceeding"), then the Agency agrees for the benefit of each and
every Permitted Mortgagee that such rejection shall be deemed the Developer's assignment of the
Agreement and the Site to the Developer's Permitted Mortgagee(s) in the nature of an assignment in lieu of
foreclosure. Upon such deemed assignment, this Agreement shall not terminate and each Permitted
Mortgagee shall, subject to compliance with Section 2.2.8, become the Developer hereunder as if the
Bankruptcy Proceeding had not occurred, unless such Permitted Mortgagee(s) shall reject such deemed
November 10,2005
15
assignment by written notice to the Agency within thirty (30) calendar days after receiving notice of the
Developer's rejection of this Agreement in Bankruptcy Proceedings.
2.6.23 New Agreement with Permitted Mortgagee.
(a) In the event of termination of this Agreement for any reason other than a
default by Agency (including by reason of any Material Default by Developer or by reason of the
disaffinnance thereof by Developer, as a debtor-in-possession, or by a receiver, liquidator or trustee for
Developer or its property), the Agency, if requested by the most senior Permitted Mortgagee (or by the next
most senior Permitted Mortgagee if Permitted Mortgagees with more senior priority do not so request) will
enter into a new Agreement with the Permitted Mortgagee or the party requesting a new Agreement upon
the same terns, provisions, covenants and agreements set forth herein and commencing as of the date of
termination of this Agreement("New Agreement"), subject to the following:
W such Pennitted Mortgagee or the requesting party shall
have provided written notice to the Agency requesting the New Agreement within thirty (30) days after the
date of termination of this Agreement;
(ii) such Permitted Mortgagee or the requesting party shall
pay to the Agency at the time of the execution and delivery of the New Agreement the sums specified in
Section 2.7.14(b)(i) which would, at the time of the execution and delivery thereof be due and unpaid
pursuant to this Agreement but for its termination, and in addition thereto any expenses and reasonable
attorneys' fees, to which the Agency shall have been subjected by reason of Developer's Material Default;
and
(b) In the event of termination of this Agreement for any reason other than a
default by Agency (including by reason of any Material Default by Developer or by reason of the
disaffirmance thereof by Developer, as a debtor-in-possession, or by a receiver, liquidator or trustee for
Developer or its property) the most senior Permitted Mortgagee, if requested by the Agency, and provided
that such Permitted Mortgagee is the then owner of the Developer Parcel, will enter into a new Agreement
with the Agency requesting a new Agreement upon the same terns, provisions, covenants and agreements
set forth herein and commencing as of the date of termination of this Agreement ("New Agreement"),
subject to the Agency having provided written notice to the party requesting the New Agreement within
thirty(30) days after the date of termination of this Agreement.
2.6.24 Priority of New Agreement. Any New Agreement shall be prior to any Mortgage or
other lien, charge, or encumbrance on the Developer Parcel and each Mortgagee shall execute such
additional consents and/or subordination agreements as may reasonably requested by the Agency or the
new Developer to evidence the priority of the New Agreement to all Mortgages, whether recorded prior or
subsequent to execution of the New Agreement.
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3. Representations and Warranties.
3.1 Developer's Representations and Warranties.
As an inducement to the Agency to enter into this Agreement and to perform its obligations
hereunder, the Developer represents and warrants to the Agency as follows:
(a) The Developer has the necessary expertise, experience, qualifications and legal
status necessary to perform as the Developer pursuant to this Agreement and to construct and complete the
Project;
(b) The Developer's acquisition of the Agency Parcel and its other undertakings
pursuant to this Agreement are for the purpose of timely redevelopment of the Site in accordance with the
Schedule of Performance attached to this Agreement and not for speculation or land holding;
(c) The Developer is a limited liability corporation, duly organized, qualified, and
validly existing and in good standing under the laws of the State of California, is duly qualified to do
business and in good standing under the laws of each other jurisdiction where the operation of its business
or its ownership of property make such qualification necessary;
(d) The Developer has all requisite power and authority required to enter into this
Agreement and the instruments referenced herein, to consummate the transaction contemplated hereby and
to take any steps contemplated thereby or hereby, and to perform its obligations hereunder and thereunder.
No consent of any additional partner, individual, corporation, shareholder, creditor, investor, judicial or
administrative body, authority or other party is required in connection with any of the foregoing.
(e) All requisite action has been taken by the Developer and the Developer has obtained
all requisite consents in connection with entering into this Agreement and the instruments and documents
referenced herein to which the Developer is a party and the consummation of the transactions contemplated
hereby.
(f) The individuals executing this Agreement and the instruments referenced herein on
behalf of the Developer have the legal power, right and actual authority to bind the Developer to the terms
and conditions hereof and thereof.
(g) This Agreement has been duly authorized, executed and delivered by the Developer
and all documents required herein to be executed by the Developer pursuant to this Agreement shall be, at
such time as they are required to be executed by the Developer, duly authorized, executed and delivered by
the Developer and are or shall be, at such time as the same are required to be executed hereunder, valid,
legally binding obligations of and enforceable against the Developer in accordance with their terms. The
Developer has duly authorized, executed and delivered any and all other agreements and documents
required to be executed and delivered in order to carry out, give effect to, and consummate the transactions
contemplated by this Agreement.
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(h) Neither the execution or delivery of this Agreement and the documents referenced
herein, nor the incurring of the obligations set forth herein, nor the consummation of the transactions herein
contemplated, nor compliance with the terms of this Agreement and the documents referenced herein, will
violate any provision of law, any order of any court or other government entity or conflict with or result in
the breach of any terms, conditions, or provisions of, or constitute a default under any bond, note, or other
evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan partnership agreement,
lease or other agreements or instruments to which the Developer or any of its members are a party or which
affect the Site.
(i) No attachments, execution proceedings, assignments of benefit to creditors,
bankruptcy, reorganization or other proceedings are pending or, to the best of Developer's knowledge,
threatened against the Developer or its members.
0) The Developer is relying solely upon its own inspections and investigations in
proceeding with this Agreement, and is not relying on the accuracy or reliability of any information
provided to it by the Agency, on any oral or written representation or on the nondisclosure of any facts or
conclusions of law made by the Agency, or any of its elected and appointed officials, officials, employees,
agents, attorneys or representatives made in connection with this Agreement. In making such investigation
and assessment, the Developer has been provided access to any persons, records or other sources of
information which it has deemed appropriate to review.
(k) Without limiting the generality of the foregoing provisions, the Developer
acknowledges that the Agency has not made and will not make any representations or warranties
concerning compliance or non-compliance of the Agency Parcel or any other portion of the Site with
Environmental Laws or the existence or non-existence of Hazardous Materials to the Agency Parcel or the
Site or otherwise.
(1) There are no adverse conditions or circumstances, pending or, to the best of the
Developer's knowledge, threatened litigation, goverrrrnental action, or other condition which could prevent
or materially impair the Developer's ability to develop the Site and the Project as contemplated by the ternis
of this Agreement, assuming that the Closing Conditions described in Section 7 are satisfied.
(m) The Developer has not paid or given, and will not pay or give, any third person any
money or other consideration for obtaining this Agreement, other than the normal cost of conducting
business and cost of professional services such as architects, engineers, and attorneys.
(n) To the best of the Developer's knowledge, all reports, documents, instruments,
information and forms of evidence delivered by the Developer to the Agency concerning or related to this
Agreement are accurate, correct and sufficiently complete to give the Agency tare and accurate knowledge
of the subject matter, and do not contain any misrepresentation or omission.
(o) The Developer has sufficient equity, capital, and firm binding financing
commitments to (i) pay all costs of development, construction, marketing and sale of all the Project
Improvements as defined in the Scope of Development; and (ii) enable the Developer to perform and
November 10,2005
1$
satisfy all the covenants of the Developer contained in this Agreement. The Developer has not and shall not
undertake such additional projects as could reasonably be expected to jeopardize the sufficiency of such
equity, capital, and firm and binding commitments for the purposes expressed in the preceding sentence.
(p) The Developer does not have any contingent obligations or any other contracts
which could affect the ability of the Developer to carry out its obligations hereunder.
(q) There are no legal proceedings either pending or, to the best of the Developer's
knowledge, threatened, to which the Developer is or may be made a party, or to which any of the
Developer's property, including the Developer Parcel, is or may become subject, which has not been fully
disclosed in the documents submitted to the Agency and which could materially affect the ability of the
Developer to carry out its obligations hereunder.
As used in this Section 3.1. "to the best of the Developer's knowledge" means the
knowledge of the Managing Members of the Developer identified in Section 1.4.2 after conducting best
efforts inquiry.
3.2 A2ency Representations and Warranties.
As an inducement to the Developer to enter into this Agreement and perform its obligations
hereunder, the Agency represents and warrants to the Developer as follows:
(a) The Agency is a redevelopment authority existing pursuant to the laws of the State
of California.
(b) The Agency has all requisite power and authority required to enter into this
Agreement and the instruments referenced herein, to consummate the transaction contemplated hereby and
to take any steps contemplated thereby or hereby, and to perform its obligations hereunder and thereunder.
No consent of any additional individual, official, board, division,judicial or administrative body, authority
or other party is required in connection with any of the foregoing.
(c) All requisite action has been taken by the Agency and the Agency has obtained all
requisite consents in connection with entering into this Agreement and the instruments and documents
referenced herein to which the Agency is a party and the consunnnation of the transactions contemplated
hereby.
(d) The individual executing this Agreement and the instruments referenced herein on behalf
of the Agency has the legal power, right and actual authority to bind the Agency to the terms and
conditions hereof and thereof.
(e) This Agreement is duly authorized, executed and delivered by the Agency and all
documents required herein to be executed by the Agency pursuant to this Agreement shall be, at such time
as they are required to be executed by the Agency, duly authorized, executed and delivered by the Agency
November 10,2005
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and are or shall be, at such time as the same are required to be executed hereunder, valid, legally binding
obligations of and enforceable against the Agency in accordance with their tenns.
(f) There are no legal proceedings either pending or, to the actual knowledge of the
Executive Director or Agency Legal Counsel, threatened, to which the Agency is or may be made a party,
or to which any of the Agency's property, including the Developer Parcel, is or may become subject, which
has not been fully disclosed in the documents submitted to the Developer and which could reasonably
affect the ability of the Agency to carry out its obligations hereunder.
3.3 Survival. Each of the items in Sections 3.1 and 3_2 in its entirety is deemed to be an
ongoing representation and warranty and shall survive the Closing and the termination of this Agreement
and shall not be merged into the Grant Deed. The Developer, or Agency, shall each promptly advise the
other party in writing if there is any change pertaining to any matters set forth or referenced in Sections 3.1
and 3_2.
4. Conveyance of Property.
4.1 The Property To Be Conveyed.
4.1.1 Agency Parcel. Pursuant to the terms and conditions set forth herein, including the
satisfaction of the Closing Conditions set forth in Section 7, the Agency agrees to sell to the Developer and
the Developer agrees to purchase from the Agency, the Agency Parcel, together with all existing Project
Improvements, presently located on the Agency Parcel, subject to all Permitted Exceptions (defined below)
and such other title exceptions as may be applicable to the Agency Parcel.
4.2 Purchase Price.
4.2.1 Purchase Price. As consideration for the sale of the Agency Parcel by the Agency to
the Developer, the Developer shall pay to the Agency an amount equal to the appraised value of the
Property as specified in Exhibit 1C of this Agreement (the "Purchase Price"), adjusted as provided in
Section 4.2.2 below.
4.2.2 Adiustments to Purchase Price. The Purchase Price for the Agency Parcel shall be
adjusted as follows:
(a) Remediation Costs. The Developer represents that it has incurred costs in the
amounts specified in Exhibit 1D of this Agreement in securing the remediation of the soils of the Property
pursuant to the terns of the License Agreement. The Agency agrees that the value of these Remediation
Costs shall be applied toward the Purchase Price; however, in no event shall the total Purchase Price be less
than zero ($0.00) even if the value of the Remediation Costs exceed the Purchase Price of the Agency
Parcel. Prior to and as a condition of the close of escrow on the sale of the Agency Parcel, Developer shall
provide appropriate certifications of costs, acceptable to the Executive Director and Agency Counsel
N.,e.be,10,2005
20
(b) Closing Costs. The Developer shall also deposit into Escrow sufficient funds
to (a) cover all closing costs to be paid by the Developer pursuant to Section 7.5.1(b), (b) allow Escrow
Holder to disburse to the Agency an amount equal to the Purchase Price, as adjusted for any net credits or
debits to the Agency for closing costs and/or prorations in accordance with Sections 7.5.4 and 7.5.5.
(c) Payments in Immediately Available Funds. Funds delivered to Escrow
Holder under this Agreement shall be in the form of cash, wire transfer (to such account as Escrow Holder
notifies the Developer in writing), or by cashier's check drawn on good and sufficient funds on a federally
insured bank in the State of California and made payable to the order of Escrow Holder.
4.3 [Reserved.]
4.4 Escrow. Not later than one (1) business day after the execution of this Agreement by the
Developer and the Agency, the Developer and the Agency shall each deliver an executed original
counterpart of this Agreement to Escrow Holder. For purposes of this Agreement, the "Opening of
Escrow" shall be the date that Escrow Holder receives an executed original counterpart to this Agreement
signed by the Developer and the Agency. Upon the written acceptance of this Agreement by Escrow
Holder, this Agreement shall constitute the joint escrow instructions of the Developer and the Agency to
Escrow Holder to open an escrow (the "Escrow"). Upon Escrow Holder's written acceptance of this
Agreement, Escrow Holder is authorized to act in accordance with the terms of this Agreement. The
Developer and the Agency shall execute Escrow Holder's general escrow instructions upon request, with
such modifications thereto as the Developer and the Agency may reasonably require; provided, however,
that, if there is any conflict or inconsistency between such general escrow instructions and this Agreement,
this Agreement shall control. Escrow Holder shall not prepare any further escrow instruction restating or
amending this Agreement unless specifically so instructed by the Agency and the Developer in writing.
Any supplemental escrow instructions must be in writing and signed by the Agency and the Developer and
accepted by the Escrow Holder to be effective.
4.5 InvestiEation; Property Sold "As-Is".
4.5.1 hnvestigation.
(a) The Developer has conducted, or will have conducted prior to execution of
this Agreement, the Developer's own investigation of the Agency Parcel and all matters related to the
Agency Parcel including the state of title, including easements, covenants, conditions and/or restrictions
affecting the Agency Parcel, if any, the physical condition thereof, the accessibility and location of utilities,
the physical condition of all structures located on the Agency Parcel, as applicable, and all mechanical,
plumbing, sewage, and electrical systems located therein, suitability of soils, environmental, and other
Agency Parcel investigations. The Developer has reviewed, or will have reviewed prior to execution of this
Agreement, all items that in the Developer's sole judgment affect or influence the Developer's purchase and
use of the Property and the Developer's willingness to consummate this Agreement.
(b) The Developer acknowledges and agrees that having been given the
opportunity to inspect the Agency Parcel, review the information and documentation affecting the property,
November 10,2005
21
and has assumed the responsibility for the remediation of the Agency Parcel, the Developer is relying
solely on its own investigation of the Agency Parcel, its own review of such information and
documentation in determining the physical, economic, and legal condition of the property, and its own
November 10,2005
22
work in the remediation of the Agency Parcel, and not on any information provided or to be provided by
the Agency or the agents of the Agency. The Developer further acknowledges and agrees that any
information provided to the Developer by or on behalf of the Agency with respect to the Agency Parcel
was obtained from a variety of sources and that the Agency has not made any independent investigation or
verification of such information and makes no representations as to the accuracy or completeness of such
information. The Developer acknowledges and agrees that it shall perform its own assessment of the
environmental condition of the Developer Parcel, the presence of Hazardous Materials on the property, and
the suitability of the soil for improvements to be constructed.
4.5.2 AS-IS: WHERE-IS.
(a) No Representations or Warranties. The Developer recognizes that the
Agency would not sell the Developer Parcel except on an "AS IS, WHERE IS, WITH ALL FAULTS"
basis, and the Developer acknowledges that the Agency has made no representations or warranties of any
kind whatsoever, either express or implied in connection with any matters with respect to the Developer
Parcel or any portion thereof. The Developer acknowledges that the Developer has examined the Developer
Parcel and is buying the Developer Parcel in an "AS IS, WHERE IS, WITH ALL FAULTS" condition, in
its present state and condition and with all faults, if any. The Developer further acknowledges and agrees
that, except as otherwise specifically provided in this Agreement, the Agency has not made and does not
make and specifically negates and disclaims any representations, warranties, promises, agreements or
guaranties of any kind or character, whether express or implied, oral or written, past, present or future,
whether by the Agency or any of its agents, elected or appointed officials, representatives or employees, of
concerning or with respect to:
(i) the value of the Agency Parcel or the income to be derived from the
Developer Parcel;
(ii) the existence or nonexistence of any liens, easements, covenants,
conditions, restrictions, claims or encumbrances affecting the Agency Parcel;
(iii) the suitability of the Agency Parcel for any and all future
development, uses and activities which the Developer may conduct thereon, including the development of
the Project described herein;
(iv) the habitability, merchantability or fitness for a particular purpose of
the Agency Parcel;
(v) the manner, quality, state of repair or lack of repair of the Agency
Parcel;
(vi) the nature, quality or condition of the Agency Parcel including water,
soil .and geology;
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23
(vii) the compliance of or by the Agency Parcel or its operation with any
Governmental Requirement, including the National Environmental Policy Act, CEQA, and the Americans
with Disabilities Act of 1990;
(viii) the marmer or quality of the construction or materials, if any,
incorporated into the Agency Parcel;
(ix) the presence or absence of Hazardous Materials, at, on, under, or
adjacent to the Agency Parcel;
(x) the content, completeness or accuracy of the information,
documentation, studies, reports, surveys and other materials, delivered to the Developer in cormection with
the review of the Agency Parcel and the transactions contemplated herein;
(xi) the conformity of the existing improvements on the Agency Parcel, if
any; to any plans or specifications for the Site;
(xii) compliance of the Agency Parcel with past, current or future statutes,
laws, codes, ordinances, regulations or Governmental Requirements relating to zoning, subdivision,
planning, building, fire, safety, health or environmental matters and/or covenants, conditions, restrictions or
deed restrictions;
(xiii) the deficiency of any undershoring or of any drainage;
(xiv) the fact that all or a portion of the Agency Parcel may be located on
or near an earthquake fault line or falls within an earthquake fault zone established under the Alquist-Priolo
Earthquake Zone Act, California Public Resources Code Sections 262 1-2630 or within a seismic hazard
zone established under the Seismic Hazards Mapping Act, California Public Resources Code, Sections
2690-2699.6 and Sections 3720-3725;
(xv) the existence or lack of vested land use, zoning or building
entitlement affecting the Agency Parcel;
(xvi) the fact that the Site may be located near or in the vicinity of a
commercial airport and development of the Site may be subject to the jurisdictional review of an airport
land use commission as provided under Public Utility Code Section 21670 et seq.;
(xvii) with respect to any other matters.
(b) No Unauthorized Representations. No person acting on behalf of the Agency
is authorized to make, and by execution hereof, the Developer acknowledges that no person has made, any
representation, agreement, statement, warranty, guarantee or promise regarding the Agency Parcel or the
transaction contemplated herein or the past, present, or future zoning, land use entitlements, construction,
physical condition or other status of the Site except as may be expressly set forth in this Agreement. No
November l0,2005
24
representation, warranty, agreement, statement, guarantee, or promise, if any, made by any person acting
on behalf of the Agency that is not contained in this Agreement will be valid or binding on the Agency.
For the purposes of this Paragraph (b) of this agreement the term Agency includes the City of Palm
Springs.
(c) Release. Save and except for the covenants, representations and warranties of
the Agency and any other "Released Party" (as defined below in this Section) under this Agreement, the
Developer and any Person claiming by, through or under the Developer, including all voluntary and
involuntary successors of the Developer owning all or any portion of the Site ('Releasing Party"), hereby
waives, as of the date of execution of this Agreement and as of the Closing Date, its right to recover from,
and fully and irrevocably releases, the Agency and City of Palm Springs and their respective officials,
employees, agents, attorneys, affiliates, representatives, contractors, successors and assigns (individually, a
"Released Party", collectively, the "Released Parties") from any and all Claims that the Developer may
now have or hereafter suffer or acquire for any costs, losses, liabilities, damages, expenses, demands,
actions or causes of action: (a) arising from any information or documentation supplied by any of the
Released Parties ("Due Diligence Information"); (b) arising from any condition of the Agency Parcel,
known or unknown by any Releasing Parry or any Released Party; (c) arising from any construction
defects, errors, omissions or other conditions, latent or otherwise, including enviromnental matters, as well
as economic and legal conditions on or affecting the Agency Parcel, or any portion thereof, (d) arising from
the existence, Release, threatened Release, presence, storage, treatment, transportation or disposal of any
Hazardous Materials at any time on, in, under, from, about or adjacent to the Agency Parcel or any portion
thereof; (e) by any Governmental Authority or any other third party arising from or related to any actual,
threatened, or suspected Release of a Hazardous Material on, in, under, from, about, or adjacent to the
Agency Parcel, or any portion thereof, including any Investigation or Remediation at or about the Agency
Parcel; provided, however, that the foregoing release by the Releasing Parties shall not apply to the extent
that any Claim is the result of the willful misconduct or fraud of the Agency or their respective officials,
employees, representatives, agents, or consultants arising after the Close of Escrow. This release includes
Claims of which the Developer is presently unaware or which the Developer does not presently suspect to
exist which, if known by the Developer, would materially affect the Developer's release to the Released
Parties. The Developer specifically waives the provision of California Civil Code Section 1542, which
provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
In this connection and to the extent pennitted by law, the Developer hereby agrees, represents and
warrants, which representation and warranty shall survive the Close of Escrow and the termination of this
Agreement and not be merged with the Grant Deed, that the Developer realizes and acknowledges that
factual matters now unknown to it may have given or may hereafter give rise to Claims or controversies
which are presently unknown, unanticipated and unsuspected, and the Developer further agrees, represents
and warrants, which representation and warranty shall survive the Close of Escrow and the termination of
November 10,2005
25
this Agreement and not be merged with the Grant Deed, that the waivers and releases herein have been
negotiated and agreed upon in light of that realization and that the Developer, on behalf of itself and the
other Releasing Parties, nevertheless hereby intends to release, discharge and acquit the Released Parties
from any such unknown Claims and controversies which might in any way be included as a material
portion of the consideration given to the Agency by the Developer in exchange for the Agency's
performance hereunder.
BY INITIALIZING BELOW, DEVELOPER ACKNOWLEDGES THAT
(A) IT HAS READ AND FULLY UNDERSTANDS THE PROVISIONS
THAT THIS SECTION, (B) IT HAS HAD THE CHANCE TO ASK
QUESTIONS OF ITS COUNSEL ABOUT ITS MEANING AND
SIGNIFICANCE, AND (C) IT HAS ACCEPTED AND AGREED TO
THE TERMS SET FORTH IN THIS SECTION.
AGENCY'S INITIALS DEVELOPER'S INITIALS
This release shall run with the land as an equitable servitude for the benefit of the Agency and, shall be
included in its entirety in the Grant Deed.
5. Indemnity, No Financing Contingency.
5.1 Indemnity. The Developer hereby agrees to protect, indemnify, defend, and hold the
Agency and the City of Palm Springs and their respective officials, employees, agents, attorneys,
representatives, contractors, successors and assigns free and harmless from and against any and all Claims
arising from or related to entry onto the Agency Parcel by the Developer or the activities or work on or use
by the Developer or the Developer's officers, directors, employees, agents, representatives and/or
contractors of the Developer Parcel, including carried out by the Developer on or adjacent to the Agency
Parcel; provided, however, that the foregoing indemnity shall not apply to any diminution in the value of
the Agency Parcel resulting solely from Developer's discovery of any pre-existing condition, pre-existing
circumstance or pre-existing Hazardous Material on the Developer Parcel. The Developer shall keep the
Developer Parcel free and clear of any mechanics' liens or materialmen's liens related to the Developer's
Inspection of the Agency Parcel. The indermnification by the Developer set forth in this Section 5.4 shall
survive the Close of Escrow and the termination of this Agreement and shall not be merged with the Grant
Deed.
5.2 No Financing Contingency. The Developer acknowledges that it has examined its ability
to purchase the Agency Parcel and to develop the Project, including the Developer's ability to obtain
financing there for. As a condition precedent to entering into this Agreement, the Developer has provided
evidence, satisfactory to the Agency, of the Developer's ability to obtain such financing. The Developer
acknowledges and agrees that the Developer's purchase of the Agency Parcel is subject to no financing
contingency whatsoever with respect to either private or public financing.
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26
6. Title: Survey.
6.1 Survey. A proposed survey of the Agency Parcel ("Survey") has been prepared by
Developer. Prior to Close of Escrow the Survey shall be certified by the Surveyor to the Agency, the
Developer and the Title Company and corrections made, if necessary. The Survey identifies all Permitted
Exceptions, as hereinafter defined, by reference to the recording information applicable to the documents
creating them and also states whether any portion of the Project lies within a flood hazard area. The
Developer hereby agrees to indemnify and hold the Agency and its respective officials, employees, agents,
attorneys, representatives, contractors and successors and assigns free and harmless from any and all
Claims which the Developer shall incur or sustain as a result of inaccuracy in the legal description for the
Project. The indemnification by the Developer set forth in this Section 6.1 shall survive the Close of
Escrow and the termination of this Agreement and shall not be merged with the Grant Deed.
6.2 Permitted Exceptions. Attached hereto as Exhibit No. 6 is a preliminary title report issued
to the Agency by the Title Company with respect to the Agency Parcel ("Preliminary Title Report").
Within ten (10) days following the Effective Date, the Developer may, at the Developer's sole expense,
cause the Title Company to prepare and deliver to the Developer a preliminary title commitment from Title
Company ("Title Commitment") committing to issue to the Developer a California Land Title Association
Owner's Policy for the Agency Parcel (the "CLTA Policy") together with true and complete copies of all
instruments referred to therein. The Developer acknowledges and agrees that it has reviewed the
Preliminary Title Report and the other relevant documents referenced below and that it shall take title to the
Agency Parcel subject to the following (collectively referred to herein as the "Permitted Exceptions"): (a)
all covenants, restrictions and encumbrances, liens, exceptions, leases, restrictions, deed restrictions and
qualifications set forth in or pennitted or contemplated by this Agreement, (b) all exceptions indicated in
the Preliminary Title Report, and (c) unless removed from title in accordance with Section 6.3, any and all
further title exceptions as may be found in any subsequent update of title.
6.3 ALTA Policy: Endorsements. It shall be a condition precedent to the Developer's
obligation to close escrow that the Title Company issue the CLTA Policy with policy amount as requested
by the Developer, not to exceed the Purchase Price. It shall not be a condition precedent to the Developer's
obligation to close that the CLTA Policy show only exceptions to fee title that are Permitted Exceptions;
the Agency Parcel is being sold by the Agency "as is." The Developer shall have the right, at its sole
expense, to request and obtain an ALTA extended coverage owner's policy of insurance (the "ALTA
Policy") and any additional title endorsements ("Developer's Title Endorsements") as the Developer
deems necessary;provided that the issuance of the ALTA Policy and the Developer's Title Endorsements
shall not delay the Close of Escrow and shall not be a condition precedent to the Close of Escrow. The
Agency shall pay for the cost of the CLTA Policy. Developer shall pay for the cost of any ALTA Policy
requested by Developer and the cost of Developer's Title Endorsements. The title policy obtained by the
Developer is referred to herein as "Developer's Title Policy." Developer's failure or inability to obtain the
ALTA Policy or any or all of Developer's Title Endorsements by Close of Escrow shall not be a condition
precedent to or result in any delay in the Close of Escrow.
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27
7. Closing.
7.1 Time and Place of Closing. For purposes of this Agreement, the term "Closing Date" shall
mean five (5) working days after satisfaction of Developer's Closing Conditions and Agency's Closing
Conditions. The Close of Escrow shall take place on the Closing Date at: Chicago Title Company; [name
of Escrow Officer] (the "Title Company or Escrow Officer"). The Closing Date may be extended upon
mutual written agreement of the Parties.
7.2 Developer's Conditions Precedent to Closing. The Developer's obligation to purchase the
Property and to close Escrow is subject to and conditioned upon the Developer's satisfaction or the
Developer's written waiver, in its sole discretion, as to each of the following conditions to Close of Escrow
("Developer's Closing Conditions") on or before the Closing Date:
7.2.1 The Agency's Document Deliveries. The Agency's execution and delivery to Escrow
Holder of the following documents, which documents the Agency shall deliver to Escrow not later than one
(1) day prior to the Close of Escrow:
(a) the Grant Deed, executed by the Agency, acknowledged and in recordable
form;
(b) a federal "FIRPTA" Affidavit executed by the Agency in form reasonably
acceptable to the Developer, certifying that the Agency is not a "foreign person" under the Foreign
Investment in Real Property Tax Act;
(c) California's Real Estate Withholding Exemption Certificate Form 597-W;
(d) such proof of the Agency's authority and authorization to enter into this
Agreement and consummate the transactions contemplated hereby, and such proof of the power and
authority of the individual(s) executing and/or delivering any instruments, documents or certificates on
behalf of the Agency to act for and/or bind the Agency as may be reasonably required by Title Company
and/or the Developer; and
(e) such other documents or instruments as Escrow Holder may reasonably
request to consummate the transaction contemplated herein.
7.2.2 Title Policy. The Title Company shall be in a position to convert the Title
Coirunitment to the CLTA Policy and issue same to the Developer.
7.2.3 Leases and Contracts. Except as approved by the Developer in writing or
constituting a Permitted Exception, there shall exist no leases, contracts or rights of occupancy with respect
to the Site that shall survive the Close of Escrow.
7.2.4 Planned Development Permit. The City Council shall have approved the Planned
Development Permit for the Project.
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28
7.2.5 Thirty-one (31) days shall have passed since City's and Agency's filing of Notices of
Determination under CEQA for the Project, and no temporary restraining order, preliminary injunction, or
alternative writ has been issued by a court which sets aside the City's Project approval or temporarily
prevents City's or Developer's timely performance of this Agreement.
7.3 The Agency's Conditions Precedent. The Agency's obligation to sell the Agency Parcel
and to close Escrow is subject to and conditioned upon the Agency's satisfaction or the Agency's written
waiver, in its sole discretion, as to each of the following conditions to Close of Escrow ("Agency Closing
Conditions") on or before the Closing Date:
7.3.1 Documents to be Delivered Upon Execution of this Agreement. Prior to or
concurrently with the execution of this Agreement by the Developer, the following shall have occurred:
The Developer shall have delivered to the Agency (i) a declaration certified by the
General Partner of Developer, that the following documentation submitted by the Developer to the Agency
prior to the Effective Date is true and correct as of Close of Escrow: (aa) documentation relating to the
Developer's limited partnership and its General Partner, including, as applicable: the Limited Partnership
Agreement; (bb) copies of all resolutions or other necessary actions taken by such entity to authorize the
execution of this Agreement and any other documents or instruments required by this Agreement; (cc) a
certificate of status issued by the California Secretary of State; (dd) a copy of any Fictitious Business Name
Statement if any, as published and filed with the Clerk of Riverside County; and (ee) a certificate of good
standing of the Developer and its General Partner issued by the California Secretary of State.
7.3.2 Developer's Delivery of Purchase Price: Other Costs. Not later than two (2) days
prior to the Closing Date, the Developer shall deliver to Escrow (a) the Supplemental Deposit, as described
in Section 4.2.2(b) plus all other sums required to pay the Developer's closing costs, and other sums
required to be paid by the Developer as a condition to Close of Escrow, as described in Section 4.2 of this
Agreement.
7.3.3 Developer's Document Deliveries. The Developer's execution and delivery to
Escrow Holder of the following, which documents the Developer shall deliver to the Escrow not later than
three (3) days prior to the Closing Date:
(a) the Memorandum of DDA executed by the Developer, acknowledged and in
recordable form;
(b) a reaffirmation of the Developer's representations and warranties set forth in
Section 3.1 in form and substance acceptable to the Agency;
(e) a reaffirmation of the Release described in Section 4.5.2(c) in form and
substance acceptable to the Executive Director;
November 10,2005
29
(d) such proof of the Developer's authority and authorization to enter into this
Agreement and consummate the transactions contemplated hereby, and such proof of the power and
authority of the individual(s) executing and/or delivering any instruments, documents or certificates on
behalf of the Developer to act for and/or bind the Developer as may be reasonably required by Title
Company and/or the Agency;
(e) certification of remediation costs as provided in Section 4.2.2(a) in a form
and substance acceptable to the Executive Director and Agency Counsel; and
(f) such other documents or instruments as Escrow Holder may reasonably
request to consummate the transaction contemplated herein.
7.3.4 Evidence of Financine. The Developer shall have submitted to the Agency the
following evidence of financing:
(a) Demonstration to the satisfaction of the Executive Director or designee(i) the
availability of funds sufficient to pay all costs relating to acquisition of the Agency Parcel and development
of the Project including sufficient equity capital, bonding capacity and commitment for funding of the
Project Improvements in writing from a Permitted Mortgagee(s) and (ii) no material adverse change in the
financial capacity or condition of Developer from that presented to the Agency in Developer's response to
RFP'.
(b) A letter from a federally-insured Financial Institution to the effect that the
Developer has established a commercial account with such financial institution and a good and established
relationship with such financial institution.
(c) Such other documents, as the Agency, in its sole discretion, determines will
assist in the evaluation of whether the Developer is able to acquire the Agency Parcel, construct the Project
Improvements and perform in a timely manner all of its other obligations and commitments set forth in this
Agreement.
7.3.5 Plarmed Development Permit. The City Council approval of the Planned
Development Permit for the Project shall be final.
7.3.6 Developer's Representations and Warranties. The Developer's representations and
warranties set forth in this Agreement shall be true and correct as of the Closing Date.
7.3.7 Developer's Covenants. The Developer shall not be in default of any covenant or
agreement to be performed by the Developer under this Agreement.
7.3.8 Insurance Policies. The Developer shall have submitted to the Agency evidence of
insurance policies required to be obtained by the Developer pursuant to Section 11.
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30
7.4 Additional Closing Conditions. In addition to the provisions of Sections 7.2, 7.3, and
8.3.3, the Close of Escrow shall be conditioned upon the following Closing Conditions, which shall be for
the benefit of each of the Agency and the Developer:
7.4.1 Closing Cost Statement. Escrow Holder shall have delivered at least two (2) business
days prior to the Closing Date a statement of costs to each of the Agency and the Developer.
7.4.2 Supplemental Escrow Instructions. The Agency and the Developer shall have
prepared and approved any supplemental Escrow instructions as may be needed.
7.4.3 Closing Certificate. The Agency and the Developer shall each submit to Escrow
Holder a certificate stating that all Closing Conditions for its benefit have been satisfied or waived.
7.5 Procedures for Conveyance of Property From Agency to Developer.
7.5.1 Costs and Expenses. The costs and expenses of the Closing shall be allocated as
follows:
(a) Agency's Costs. The Agency shall pay (a) the premium for a CLTA policy;
(b) one-half(1/2) of all escrow fees and costs; and (d) the Agency's share of prorations, if any. Except as
provided herein, the Agency shall pay the fees of all consultants (including lawyers, environmental,
engineering and land use consultants) engaged by it.
(b) Developer's Costs. The Developer shall pay for (a) the premium for the
Developer's Title Policy; (b) the cost, if any, of any title insurance policy required by any Mortgagee; (c)
document recording charges for the Grant Deed, the Memorandum of DDA and other documents recorded
at Closing; (d) all documentary transfer taxes; (e) one-half(1/2) of all escrow fees and costs; and (f) the
Developer's share of prorations. The Developer shall pay the fees of all consultants and employees
(including lawyers, environmental, engineering and land use consultants) engaged by it.
(c) Other Costs. All costs and expenses related to the Closing and the transfer of
the Agency Parcel to the Developer not otherwise allocated herein shall be allocated between the
Developer and the Agency in accordance with the customary practice in Riverside County, California.
7.5.2 Possession. The Agency shall deliver the Grant Deed to the Agency Parcel and
possession of the Agency Parcel at the Close of Escrow.
7.5.3 Deliveries to Developer Upon Closing. The Agency agrees to deliver to the
Developer, on or prior to the Closing Date, outside of Escrow, the following items:
(a) Records and Plans. To the extent in the Agency's possession, originals or
copies of records and plans that will affect the Site after the Closing.
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(b) Licenses and Permits. To the extent in the Agency's possession, originals or
copies of all licenses and permits affecting the Agency Parcel.
7.5.4 Proration.
(a) Taxes. The Developer shall be responsible for all taxes, fees and charges
imposed by any Governmental Authority from and after the Close of Escrow. If, after the Closing, any real
property taxes are assessed against the Agency Parcel pertaining to the period prior to the Closing, the
Agency agrees to contact the applicable taxing authority and seek recognition and enforcement of its tax
exemption. The provisions of this Section 7.5.4 shall survive the termination of this Agreement and the
Closing and shall not merge into the Grant Deed.
(b) Contracts and Leases. The Developer has agreed to maintain the Site from
the Effective Date to and through the Closing Date. Accordingly, amounts payable under Contracts and
Leases and any other expenses relating to the Site (excluding real property taxes or other taxes) shall be
prorated on an accrual basis as of the Effective Date (and not the Closing Date). The Agency shall pay all
amounts due thereunder which accrue prior to the Effective Date, and, unless previously paid by the
Developer, the Developer shall pay all amounts accruing on the Effective Date and thereafter.
(c) Method of Proration. All prorations shall be made in accordance with
customary practice in Riverside County, except as otherwise expressly provided herein. The Developer and
the Agency agree to cause a schedule of prorations to be prepared prior to the Closing Date. Such
prorations, if and to the extent known and agreed upon as of the Closing Date, shall be paid by the
Developer to the Agency (if the prorations result in a net credit to the Agency) or by the Agency to the
Developer (if the proration result in a net credit to the Developer) by increasing or reducing the cash to be
paid by the Developer at the Closing. Any such prorations not determined or not agreed upon as of the
Closing shall be paid by the Developer to the Agency, or by the Agency to the Developer, as the case may
be, in cash as soon as practicable following the Closing. A copy of the schedule of prorations as agreed
upon by the Developer and the Agency shall be delivered to Escrow Holder at least three (3) business days
prior to the Closing Date. All prorations provided for in this Section shall be on an "actual day" basis and a
three hundred sixty-five (365) day year. If the Agency Parcel is part of a larger tax parcel ("Assessment
Parcel"), which as of the Close of Escrow remains unsegregated on the County Tax Assessor's Roll for the
coming fiscal year, Escrow Holder shall charge the Developer and credit the Agency for taxes and
assessments allocated to the Agency Parcel on an acreage basis compared to the acreage for the entire
Assessment Parcel, which acreage figures for allocation purposes shall be fairly and equitably determined
and supplied to Escrow Holder by the Parties. The Parties shall cooperate in good faith to cause the Agency
Parcel to be separately assessed and segregated in Developer's name on the current tax roll at the earliest
possible time.
7.5.5 Disbursements and Other Actions by Escrow Holder. At the Close of Escrow and
subject to the satisfaction or waiver by the benefited party of the Closing Conditions described in Sections
7.2, 7.3, and 7_4, Escrow Holder shall promptly undertake all of the following in the manner indicated
below:
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7.5.6 Funds. Debit or credit all matters addressed in Section 7.5.1 and prorate all matters
addressed in Section 7.5.4 and disburse to the Agency the Purchase Price (as adjusted by the foregoing
debits, credits and prorations) deposited with Escrow Holder by the Developer.
7.5.7 Recording. Cause the Grant Deed; the Memorandum of DDA and any other
documents which the Developer and the Agency may mutually direct, or which may be required to be
recorded by the terms of this Agreement to be recorded in the Official Records, obtain conformed copies
thereof and distribute same to the Developer and the Agency.
7.5.8 Title Policy. Direct the Title Company to issue the CLTA policy to the Developer,
concurrent with the issuance of the Insurance Policy the Title Company shall provide such endorsements as
may be requested by the Developer.
7.5.9 Delivery of Documents to Developer and Agency. Deliver to the Developer and the
Agency original counterparts (and conformed copies, if applicable) of the Grant Deed, the Memorandum of
DDA, the FIRPTA Certificate, the California Form 597-W and any other documents (or copies thereof)
deposited into Escrow by the Developer or the Agency pursuant hereto, and deliver to the Developer and
the Agency a certified copy of their respective Escrow closing statements.
7.5.10 Other Actions. Take such other actions as the Developer and the Agency direct
pursuant to mutually executed supplemental Escrow instructions.
7.5.11 Notice. All communications from the Escrow Holder shall be directed to the
addresses and in the manner established in Section 17.7 of this Agreement for notices, demands, and
communications between the Parties.
8. Development of the Proiect.
8.1 Scope of Development.
8.1.1 Requirement to Develop the Project. The Scope of Development attached to this
Agreement as Exhibit No. 7 sets forth the overall plan for the Project and development of the Site,
including the Common Areas. The Developer shall improve the Site and construct the Public
Improvements identified in Exhibit No. 7, in the manner described in the Scope of Development and in
accordance with the Schedule of Performance and the Approved Project Plans, all as further described
below.
8.1.2 Responsibility for Project Development. The Developer shall have responsibility for
the design and layout of the Private Improvements (including height, shape, and location, size of floor
plans, and special landscaping and art features), the Public hmprovements and for the special uses to be
incorporated therein, subject to the approval of the Agency and the City, pursuant to its governmental
authority as entitling agency, and subject to the provisions of this Agreement, including the design review
and approval provisions for the benefit of the Agency set forth in this Agreement which are undertaken by
the Agency in its proprietary capacity.
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8.1.3 Project Development Costs. Within the time set forth in the Schedule of Perfonnance
and subject to Force Majeure, the Developer shall final the design of and construct the Project at the
Developer's sole cost and expense. Without limiting the generality of the foregoing, the Developer hereby
agrees that all costs associated with planning, designing and constructing the Project, preparing the Site and
constructing all Project Improvements thereon including all hard costs, soft costs, the cost of services, fees,
exactions, dedications, cost overruns, profit, overhead, consultants' fees, legal fees, wages required to be
paid to any person employed by the Developer, any Assignee, contractor or subcontractor, Quimby Act
Fees ("Development Costs"), has been and will continue to be the responsibility of the Developer without
any cost or liability to the Agency.
8.1.4 Compliance with Governmental Requirements and Other Requirements. The Project
shall be consistent with the Scope of Development and shall be developed and maintained in accordance
with this Agreement and all Governmental Requirements, including the Approved Project Plans.
8.1.5 Construction of Specific Project Components.
(a) Project Improvements. The Developer shall promptly begin and thereafter
diligently prosecute to Completion in accordance with the Schedule of Performance and subject to Force
Majeure, all Project Improvements when and as required by the Agency and pursuant to all Governmental
Requirements, State and Federal Law.
(b) Quimby Fees. The Developer shall be responsible at its sole cost and
expense for compliance with the Quimby Act, California Govermnent Code Section 66477 and shall pay in
lieu fees in compliance with Palm Springs City Code Section 9931(d).
8.2 Timing and Conditions of Proiect Development.
8.2.1 Schedule of Perfornance. Attached hereto as Exhibit No. 6 is a Schedule of
Performance which sets forth the schedule for submissions, approvals and actions, including the design and
construction of the Project Improvements. The Parties acknowledge and agree that the Agency is entering
into this Agreement with the expectation that subject to Force Majeure, the projections in the Schedule of
Performance will be met. Following conveyance of the Agency Parcel to the Developer, the Developer
shall promptly begin and thereafter diligently prosecute to completion all steps required by the Schedule of
Performance including final design, construction, and development of the Project Improvements within the
time specified in the Schedule of Performance. The Agency may, in its sole discretion and upon written
request from the Developer, extend the time specified in the Schedule of Performance; provided, however,
that the Agency shall not withhold its consent to reasonable extensions to deadlines in the Schedule of
Performance requested by the Developer so long as the Developer is proceeding in good faith and in a
commercially reasonable matter, as determined by the Agency in its sole discretion, to comply with the
requirements of the Schedule of Performance and there are no circumstances applicable to or causing the
delay suffered by the Developer that would not apply to other developers attempting to complete similar
commercial projects in Riverside County. Any such agreed upon changes shall be within the limitations of
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the Entitlements. Any such extensions shall not be deemed as amendments to this Agreement. Any such
extensions shall be evidenced by written notice from the Executive Director or designee.
8.2.2 Conditions Relating to Timing and Sequencing of the Development of the Project.
The following are express conditions precedent to the right of the Developer to proceed with development
of the Project.
(a) Prior to issuance of the first grading permit (other than stockpiling) for the
Project, the Developer shall provide a Performance Bond and a Payment Bond in an amowrt and form
acceptable to the City Engineer securing its obligations to construct the Public Improvements.
(b) School Impact Fees. The Developer acknowledges and agrees that the Site
may be subject to imposition of developer school impact fees by the Palm Springs Unified School District.
Such fees shall be paid by Developer in accordance with law, prior to issuance of Building permits for the
Private Improvement, and evidence of such payment provided to City.
(c) Conditions of Approval. The Developer acknowledges and agrees that the
Developer shall fully comply with all conditions of approval of the City Council Resolution No. 21433,
conditionally approving a planned development permit (Case 5.0948 PD-291) (the "Planned Development
Permit") for the Project on October 19, 2005.
8.3 Land Use Matters.
8.3.1 Entitlements and Development Permits. It is the responsibility of the Developer,
without cost to the Agency: (a) to obtain all land use approvals and entitlements legally required by the
City or any other Governmental Authority as a condition to development of the Site and construction of the
Project Improvements shown in the Scope of Development and the Preliminary Plan as the same may be
modified from time to time with the approval of the Agency ("Entitlements"); (b) to obtain all grading,
demolition, and building permits; and (c) to assure that the design, construction, use, operation,
maintenance, repair and replacement of the Project Improvements is carried out in accordance with the
provisions of this Agreement, and is pennitted by zoning and all applicable City requirements. Nothing
contained herein shall be deemed to entitle the Developer to any Entitlement or grading, demolition, and
building permit or other City approval necessary for the development of the Site, or to the waiver of any
applicable Agency requirements relating thereto. The failure of the City to issue or approve any
Entitlement described in this Agreement, or to issue any grading, demolition, and building permit shall not
be a default of the Agency under this Agreement. Nothing in this Agreement shall be construed as
prohibiting the Developer from requesting and securing temporary certificates of occupancy of portions of
the Project from the City subject to the usual and customary practice of the City in the administration of its
building and zoning ordinances.
8.3.2 Agreement Does Not Grant Entitlements. This Agreement does not (a) grant any
land use entitlement to the Developer, (b) supersede, nullify, or amend any condition which may be
imposed by the City in connection with approval of the Project, (c) guarantee to the Developer or any other
party any profits from the development of the Site, or(d) amend any City laws, codes, or rules.
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8.3.3 Entitlements. This Agreement and the development of the Project shall be subject to
the completion of all Entitlement review processes of the City all of which are Closing Conditions,
including but not limited to final approval of the planned development permit as described in Section 8.5 of
this Agreement. Without limiting the foregoing, in developing and constructing the Project, the Developer
shall ensure that the Project complies with all applicable development standards in the Redevelopment
Plan, the City Code, and with all building codes, landscaping, signage, and parking requirements, except as
may be permitted pursuant to the Planned Development Permit.
8.3.4 Development Permits and Dedications. The Developer shall process, secure, or cause
to be secured any and all permits, certificates, and approvals which may be required by the Agency or any
other Governmental Authority to develop the Site and to construct the Project Improvements (collectively,
"Development Permits").
8.3.5 Agency Review of Land Use Applications. Consistent with this Agreement, the
Agency agrees, without cost to the Agency, to support the Developer's efforts to obtain the Entitlements
and grading, demolition, and building permits required for the full implementation of this Agreement. The
Agency will seek to expedite review of entitlement applications where reasonably required in order to meet
the deadlines set forth in the Schedule of Performance. Without limiting any other provision of this
Agreement, the Developer shall pay all pennit fees and other fees and costs normally charged by the
Agency in comiection with application for and review and approval of Entitlements and grading,
demolition, and building permits.
8.3.6 CEQA Requirements. The Parties acknowledge and agree that CEQA is applicable
to the development of the Project. The Developer has been and will continue to be responsible, at its own
cost and expense, for obtaining CEQA approvals and certifications, if any, required by the Agency and any
other Governmental Authority for development of the Project. The Agency agrees to cooperate with the
Developer in obtaining information to detennine the environmental impact of the Project, if any.
8.3.7 Conditions of Approval. The Developer acknowledges and agrees that the Agency
shall require certain satisfaction of conditions and dedication of certain property, as determined by the
Agency in its sole discretion, in connection with its approval, or the City's approval, of any Entitlement
approved in conjunction the approval of the Project.
8.4 Financial Status.
8.4.1 Financial Capability. Until issuance of the Certificate of Compliance, the Developer
shall continue to be responsible for demonstrating to the Agency the financial capacity and capability to
perform its obligations under this Agreement. The Developer shall submit any additional financial
information of Developer and its members or managing member as requested by the Agency within thirty
(30) days of a request by the Agency pursuant to this Agreement. The Developer shall identify with
specificity the documents which the Developer wants the Agency to maintain as confidential documents
and a statement as to why the request is consistent and complies with the provisions of the Public Records
Act of the State of California. If confidentiality is requested and if nondisclosure under the Public Records
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36
Act is allowed, the documents shall be delivered to and maintained by the Agency and copies shall not be
disseminated. Otherwise, Developer agrees to make such information available to Agency at its offices. To
the extent permitted by law, the Agency shall not make public disclosure of confidential documents. The
Agency's agents, negotiators and consultants may review the documents as necessary as long as such
parties agree to maintain the confidentiality of such documents.
8.4.2 Additional Information. The Developer understands and agrees that the Agency
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 and desire to
develop the Site expeditiously.
8.5 Design Approval.
8.5.1 Design Review. It is understood and agreed to by the Developer that the quality,
character, and uses proposed for the Project are of particular importance to the Agency and that the City,
acting in its governmental capacity, will continue to require Concept Plan and Design Review approval as
part of the Entitlements. In addition, in its proprietary capacity as seller of the real property that is the
subject of this Agreement, the Agency will require plan review and approval for the Site as further set forth
in this Section 8.5.
8.5.2 Plan Development and Cost. All plans and specifications for the Project have been
and will continue to be prepared by the Developer at the Developer's sole cost and expense and subject to
the requirements set forth in this Section 8.5.
8.5.3 Preliminary Plans and Development of Further Design Stages. The Developer has
previously submitted to the City and Agency a preliminary development plan for the Site (the
"Preliminary Plan"), which is on file with the Development Services Department, graphically depicting
the overall plan for development of the Project Improvements on the Site. Such plan was revised and
submitted to the Agency Board and City Council for review and approval. The City Council reviewed and
conditionally approved a planned development permit (Case 5.0948 PD-291) (the "Planned Development
Permit") for the Project on October 19, 2005. The Agency and the Developer agree that the Placed
Development Pen-nit is in substantial compliance with the Preliminary Plan. Within the timeframe shown
in the Schedule of Performance, Developer shall submit for approval by the Agency and City, final design
drawings and related documents ("Final Design Documents") conforming to the requirements of the
conditions of approval for the Planned Development Permit and the Palm Springs Municipal Code.
8.5.4 Coordination. The Developer and the Project Architect shall meet with
representatives of the Agency to review and come to a clear understanding of any additional planning and
design criteria required by the Agency for the preparation of Final Design Documents in conformity with
the approved Planned Development Permit. During the preparation of all Final Design Documents, staff of
the Agency and the Developer shall hold regular progress meetings to coordinate the preparation of,
submission to, and review of the Final Design Documents. The staff of the Agency and the Developer shall
communicate and consult as frequently as necessary to facilitate prompt and speedy consideration of the
Developer's submittals.
Navemb.,10,2005
37
8.5.5 Proprietary Review. The Agency shall have the right of reasonable architectural
review of all plans and submissions, including any proposed changes thereto, regarding exterior elevations,
exterior materials (including selections and colors) and the size, bulk and scale for all buildings. The
Developer acknowledges and agrees that the Development Services Department is responsible for
reviewing the working drawings and issuing the appropriate Development Permits. The exercise of the
Executive Director's office of its right to inspect or review the plans, drawings, and related documents for
development of the Site, including the Final Design Documents: (a) is an exercise of the Agency's
proprietary function and not the City's governmental function; (b) shall not constitute an approval by the
Agency of any Entitlements or Development Permits; (c) shall not constitute a determination by the
Agency of the engineering or structural design, sufficiency or integrity of the improvements contemplated
by such plans, drawings and related documents; and (d) shall not constitute a determination by the Agency
of the compliance of such plans, drawings, and related documents with any applicable building codes,
safety features and standards. Any inspection or approval of plans, specifications and drawings made or
granted pursuant to this Agreement shall not constitute an inspection or approval of the quality, adequacy
or suitability of such plans, specifications or drawings, nor of the labor, materials, services or equipment to
be furnished or supplied in connection therewith.
8.5.6 Process for Proprietary Review. In order to comply with the provisions of Sections
85.5 at each of the schematic design, design development, and construction document stages, the
Developer shall submit two sets of Final Design Documents for the Project Improvements to the City. The
Final Design Documents shall be in compliance with the approved Planned Development Pen-nit. All plans
to be submitted to the Agency shall be submitted in writing over the signature of the Developer or a
representative duly authorized by the Developer in writing. If the Executive Director approves such Final
Design Documents, the Executive Director shall endorse its approval on one set of submitted documents
and return the same to the Person from whom the documents were received. The Executive Director shall
conclusively be deemed to have given its approval to such Final Design Documents unless, within ten (10)
business days after the Agency's receipt of such Final Design Documents, the Executive Director gives
written notice of disapproval to the Developer specifying in reasonable detail each item that the Executive
Director disapproves and the reasons for such disapproval. In the event of disapproval by the Executive
Director of such Final Design Documents for any Project Improvements, the Developer shall make changes
in response to the Executive Director's notice of disapproval and resubmit such Design Documents to the
Executive Director's review and approval in accordance with the provisions of this Section 8.5.6 (except
that in such case the Executive Director's review period shall be five (5) business days rather than ten (10)
business days). Submissions of plans by the Developer with respect to partial portions of the Project or the
Site shall be permitted provided that the same shall be sufficient to permit review by the Director for the
purposes set forth above. The Developer's final submittal to the Agency, when approved by the Executive
Director, shall be deemed submitted to the Agency in its proprietary capacity and shall constitute the
"Final Plans."
8.5.7 Later Stage Design and Construction. The Developer shall not commence or permit
commencement of any work of construction in connection with any subsequent development or any
redevelopment on the Site, other than Project Improvements constructed in accordance with the Approved
Project Plans, interior construction work, building facade replacements or building repair or restoration on
November 10,2005
38
the same footprint following a casualty, without the written consent of the Agency. If the, Developer
contemplates any action not permitted by the foregoing, the Developer shall submit the applicable Design
Documents to the Agency for approval in accordance with Sections 8.5.5 and 8.5.6 prior to commencing
any construction work. The Agency shall have the right to approve or disapprove any such Design
Documents in accordance with the standards and procedures for the Agency's review and approval set forth
in such sections.
8.5.9 Agency's Governmental Review. The Parties acknowledge that the Agency shall
have the right to review all plans and submissions, including any changes therein, through its normal plan
review and Entitlement process and that the Agency may exercise its governmental discretion in review of
any of the plans and submissions. The Development Services Department is authorized to mutually
approve minor changes to building plans after approval by the Agency provided such changes do not
significantly reduce the quality of the development concept or the design and materials to be used in
enhancing the architecture and aesthetics of the Project Improvements.
8.5.9 Exculpation. The Agency shall not be liable in damages to the Developer or to any
owner, lessee, any licensee or other Person, on account of(a) any approvals by the Agency, including by
the Executive Director or designee, whether made in the governmental capacity of City or proprietary
capacity of the Agency, or any disapproval of any Final Design Document submittal, whether or not
defective or whether or not in compliance with applicable laws or ordinances; (b) any construction,
perfonnance or nonperformance by the Developer or any owner, lessee, licensee or other Person of any
work on the Property, whether or not pursuant to approved Final Design Document submittals or whether
or not in compliance with applicable laws or ordinances; (c) any mistake in judgment, negligence, action or
omission in exercising its rights, powers and responsibilities hereunder; and/or (d) the enforcement or
failure to enforce any of these Restrictions. Every Person who makes Final Design Document submittals
for approval agrees by reason of such submittal, and the Developer and every subsequent owner of the Site
or any portion thereof agrees by acquiring title thereto or an interest therein, not to bring any suit or action
against the Agency or City seeking to recover any such damages and expressly waives any such claim or
cause of action which it would otherwise be entitled to assert. The review of any Design Document
submittal shall not constitute the assumption of any responsibility by, or impose any liability upon, the City
or Agency as to the accuracy, efficacy, sufficiency or legality thereof nor decrease or diminish any liability,
duties, responsibilities, or obligations of the Developer under this Agreement.
8.5.10 No Supervision or Control. The Agency does not have any right and hereby
expressly disclaims any right of supervision or control over the architects, designers, engineers, or persons
responsible for drafting or formulating of the plans, drawings and related documents of the Developer.
8.5.11 Approved Project Plans. Upon approval by the City of the Entitlements and
subsequent approval by the Agency of the Final Plans in accordance with Section 8.5, the plans so
approved (the "Approved Project Plans"), shall govern development of the Project Improvements on the
Site. To the extent of any inconsistencies between the plans identified in the Scope of Development or the
Preliminary Plans and the Approved Project Plans, the Approved Project Plans shall govern and control as
to the development of the Site.
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8.6 Construction Covenants.
With respect to construction of the Project, the Developer hereby covenants and agrees as follows:
8.6.1 The Developer shall maintain throughout the term of this Agreement, sufficient
equity, capital and binding commitments for financing necessary to (i) pay through Completion, all costs of
development, construction, marketing and sale of all the Project Improvements as defined in the Scope of
Development; and (ii) enable the Developer to perfonn and satisfy all the covenants of the Developer
contained in this Agreement. The Developer shall not undertake such additional projects as could
reasonably be expected to jeopardize the sufficiency of such equity, capital and firm and binding
commitments for the purposed expressed in the preceding sentence.
8.6.2 The development of the Project shall be done in a professional and competent
mariner. The Developer shall perform all work required to complete the Project and related work in
accordance with all Governmental Requirements.
8.6.3 The Developer shall be responsible for the timeliness and quality of all work
performed and materials and equipment furnished in connection with the Project, whether the work,
materials and equipment are performed and furnished by the Developer or through subcontractors,
sub-subcontractors (of all tiers) and suppliers.
8.6.4 The Developer shall promptly cause to be removed (by way of release bonds, if
necessary) any and all mechanic's liens, stop notices and/or bonded stop notices that are recorded and/or
served by subcontractors, sub-subcontractors (of all tiers) and suppliers in connection with the Project.
8.6.5 The Developer shall commence the development of the Project promptly and shall
assure the completion of the development of the Project in accordance with the projections set forth in the
Schedule of Perfonnance, subject to Force Majeure.
8.7 Agency Rights of Access. Representatives of the Agency shall have the reasonable right of
access to all portions of the Site, without charges or fees, at normal construction hours during the period of
construction for the purposes of this Agreement, including the inspection of the work being perfonned in
constructing the Project Improvements. The Agency agrees to indemnify, defend and hold the Developer
harmless for any and all claims, liability and damages arising out of any inspection or other activity on the
Site by the Agency, or their respective agents, employees or contractors permitted pursuant to this Section
8_7, except to the extent caused by the negligence or willful misconduct of the Developer.
8.8 Disclaimer of Responsibility by Agency. The Agency neither undertakes nor assumes nor
will have any responsibility or duty to the Developer or to any Assignee or to any other third party to
review, inspect, supervise, pass judgment upon or inform the Developer, Assignee or any third party of any
matter in connection with the development or construction of the Project Improvements, whether regarding
the quality, adequacy or suitability of the plans, any labor, service, equipment or material furnished to the
Site, any person furnishing same, or otherwise. The Developer, any Assignee and all third parties shall rely
upon its or their own judgment regarding such matters, and any review, inspection, supervision, exercise of
November 10,2005
40
judgment or information supplied to the Developer, Assignee or to any third party by the Agency in
connection with such matter is for the public purpose of redeveloping the Site, and neither the Developer
nor any Assignee nor any third party is entitled to rely thereon. The Agency shall not be responsible for any
of the work of construction, improvement or development of the Site.
8.9 CC&Rs. Conditions, covenants, and restrictions ("CC&Rs") shall be prepared by
Developer for recordation against the Site. The CC&Rs shall be subject to review and approval by the
Agency. The CC&Rs shall include, at a minimum, the following provisions as applicable: (a) maintenance
of the Common Area; (b) a maintenance covenant for the benefit of the Agency as set forth in Section 12.2
or as otherwise agreed by the Agency in its sole discretion, (c) the release provisions set forth in Section
4.5.2 c ; (d) all other applicable requirements included in the conditions of approval for the Entitlements
for the Project; and (e) covenants to maintain and/or contribute to the maintenance of post-construction best
management practices to control runoff.
8.10 Local, State, and Federal Laws. The Developer shall carry out the construction of the
Project, including all Project hmprovements, in conformity with all applicable laws and Governmental
Requirements, including all applicable federal and State labor laws and requirements. Neither the City nor
the .Agency shall be responsible for any claims, including penalties assessed by Governmental Authorities,
arising from or related to Developer's construction of the Project, including compliance with the prevailing
wage requirements imposed by State law and by the Davis-Bacon Act requirements imposed by federal
law.
8.11 Taxes, Assessments, Encumbrances, and Liens. The Developer shall pay when due and
prior to delinquency all real property taxes and assessments assessed and levied on or against all portions of
the Agency Parcel subsequent to the conveyance of fee thereto by the Agency to the Developer. The
Developer shall not place, or allow to be placed, on its interests in the Site, Parcel, Lot or Unit, or any
portion thereof, any Mortgage or encumbrance or lien not authorized by this Agreement. The Developer
shall remove, or shall have removed, any levy or attachment made on its interests in the Property (or any
portion thereof), or shall assure the satisfaction thereof within a reasonable time but in any event prior to
foreclosure sale. Nothing herein contained shall be deemed to prohibit the Developer from contesting the
validity or amount of any tax, assessment, encumbrance or lien, nor to limit the remedies available to the
Developer in respect thereto.
9. Certificate of Compliance.
9.1 Completion: Schedule of Performance. Following the mutual execution and delivery of
this Agreement, the Developer shall proceed diligently and in good faith to complete the Entitlement
process, design and construct the Project and satisfy all Conditions Precedent relating to issuance of a
Certificate of Compliance when and as required by this Agreement in accordance with the Schedule of
Performance.
9.2 Issuance of Certificate(s) of Compliance. After Completion of construction and
development required to be undertaken by the Developer in conformity with this Agreement and
satisfaction of the Conditions Precedent set forth below, to the satisfaction of the Executive Director in his
November 10,2005
41
sole reasonable discretion, the Executive Director shall deliver to the Developer or Assignee, as the case
may be, a Certificate of Compliance, conditional or unconditional, upon written request there for by the
Developer. After the recordation of a Certificate of Compliance, any Person then owning or thereafter
purchasing, leasing, or otherwise acquiring any interest in the Project covered by such Certificate of
Compliance shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or
liability under this Agreement with respect to such Project Improvements, except that such Party shall
continue be bound by any covenants contained in Sections 10 and 12 of this Agreement. Issuance of one or
more Certificates of Compliance shall not waive any rights or claim that the Agency may have against any
party for latent or patent defects in design, construction, or similar matters under any applicable law, nor
shall it be evidence of satisfaction of any of the Developer's obligations to others, not a party to this
Agreement. The Certificate of Compliance shall be in such form as to permit it to be recorded in the
Official Records.
9.3 Conclusive Presumption. The Certificate of Compliance shall be, and shall so state,
conclusive determination of satisfactory completion of the obligations of the Developer pursuant to this
Agreement.
9.4 Release of Bonds. Upon issuance of the Certificate of Compliance, the Agency shall
release any Performance Bond required by Section 8.2.2(a).
9.5 Not Evidence. Issuance by the Agency of a Certificate of Compliance shall not constitute
evidence of compliance with or satisfaction of any obligation of the Developer to any insurer of a Mortgage
securing money loaned to finance the Project Improvements, nor any part thereof. Such Certificate of
Compliance is not a notice of completion as referred to in Section 3093 of the California Civil Code.
9.6 Conditions Precedent to Issuance of Certificate of Compliance. The Executive Director
shall not be obligated to issue a Certificate of Compliance for the Project as a whole, unless and until each
of the following has occurred(the "Conditions Precedent"):
(a) final inspection of the Site and determination by the Agency that the Project
Improvements thereon and all improvements required in connection with the Project hmprovements have
been Completed in conformance with this Agreement and all Governmental Requirements;
(b) issuance of a certificate of substantial completion for the Project as
applicable, by the Project Architect;
(c) issuance of the final certificate of occupancy by the City for all buildings
within the Project;
(d) releases or waivers of all liens or rights to record liens having been obtained
from the general contractor and all subcontractors or the endorsements to their respective Mortgagee's title
insurance policies, and the statutory period for filing liens having expired;
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42
(e) review and approval by the Executive Director and Agency Counsel of the
form and substance of the CC&Rs to be recorded against the Site to govern use, maintenance and operation
of the Site, and recordation of the CC&Rs in the Official Records with subordination thereto by all
Mortgagees of record as of the date of such recordation.
9.7 Auncy Obligations. The Executive Director shall not unreasonably withhold or delay
issuance of any Certificate of Compliance. If the Agency refuses or fails to issue a Certificate of
Compliance after written request from the Developer, provided each of the conditions established in
Section 9.6 have been satisfied, the Agency shall within ten (10) business days of the written request,
provide a written statement which details the reasons the Agency refused or failed to issue the Certificate of
Compliance. The statement shall also contain a statement of the actions that the Developer must take to
obtain a Certificate of Compliance.
Upon recordation of a Certificate or Certificates of Compliance for the entire Project, this Agreement shall
terminate and shall be of no further force and effect, except that:
(a) the provisions of Section 4.5.2, including the release set forth therein, shall
survive in perpetuity;
(b) the covenants set forth in Section 12 shall survive in perpetuity;
(c) the environmental indemnity set forth in Section 10 shall remain in effect and
shall bind Developer and its personal successors and assigns.
10. Indemnification and Environmental Provisions.
10.1 Developer's Indemnification. As a material part of the consideration for this Agreement,
and to the maximurn extent permitted by law, the Developer shall indemnify, protect, defend, assume all
responsibility for and hold hannless the Agency and its officials, employees, contractors, representatives
and agents (collectively referred to as the "Indemnified Parties"), with counsel reasonably acceptable to
the Agency, from and against any and all Claims resulting or arising from or in any way connected with the
following, provided the Developer shall not be responsible for (and such indemnity shall not apply to) the
gross negligence or willful misconduct of the Indemnified Parties:
(a) The Developer's marketing, sale or use of the Site in any way;
(b) Any other activities of the Developer;
(c) Any plans or designs for Project Improvements prepared by or on behalf of
the Developer, including any errors or omissions with respect to such plans or designs;
(d) Any loss or damage to the Agency resulting from any inaccuracy in or breach
of any representation or warranty of the Developer, or resulting from any breach or default by the
Developer, under this Agreement; and
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43
(e) Any development or construction of any Project Improvements by the
Developer, whether regarding the quality, adequacy or suitability of the plans, any labor, service,
equipment or material furnished to the Site, any person furnishing the same, or otherwise.
10.2 Environmental Indemnity. As a material part of the consideration for this Agreement, and
effective as to the Agency Parcel upon the Developer's acquisition of fee title the Developer shall, to the
maximum extent permitted by law, indemnify, protect, defend, assume all responsibility for and hold
harmless the Indemnified Parties from and against any and all Claims resulting or arising from or in any
way cormected with the existence, Release, threatened Release, presence, storage, treatment, transportation
and/or disposal of any Hazardous Materials at any time on, in, under, from, about or adjacent to any portion
or portions of said land, regardless whether any such condition is known or unknown now or upon
acquisition and regardless whether any such condition pre-exists acquisition or is subsequently caused,
created or occurring, provided, however, that the Developer shall not be responsible for (and such
indemnity shall not apply to) the gross negligence or willful misconduct of the Indemnified Parties. This
environnental indemnity shall be included in any recorded memorandum of this Agreement against said
land and shall be binding upon successors and assigns of the Developer owning all or any part thereof.
10.3 RESERVED
10.4 Claim Response. In the event that any Environmental Agency or other third party brings,
makes, alleges, or asserts a Claim against the Developer, arising from or related to any actual, threatened,
or suspected Release of Hazardous Materials on or about the Site, including any Claim for Investigation or
Remediation on the Site, or such Environmental Agency or other third party orders, demands, or otherwise
requires that any Investigation or Remediation be conducted on the Site, the Developer shall promptly
notify the Agency in writing and shall promptly and responsibly respond to such Claim. Further, upon
receipt of such Claim, order, demand or requirement, the Developer shall (a) take such reasonable
measures, as necessary or appropriate, to reasonably dissuade such Environmental Agency or other third
party from bringing, making, alleging, or asserting any Claim against the Agency arising from or related to
any actual, threatened, or suspected Release of Hazardous Material on or about the Site, including any
Claim for Investigation or Remediation on the Site, and (b) request that the Environmental Agency not
issue any order, demand, or requirement to the Agency under any of the Environmental Laws, or any other
local, regional, State or federal law, or seek penalties or take other punitive action against the Agency, in
correction with, arising from, or related to any actual, threatened, or suspected Release of Hazardous
Material on or about the Site, including any Investigation or Remediation on or about the Site
10.5 Release Notification and Remedial Actions. If any Release of a Hazardous Material is
discovered on the Site and regardless of the cause, the Developer shall promptly (a) provide written notice
(or in the event of emergency, telephonic notice, followed by written notice) of any such Release to the
Agency and (b) at Developer's sole risk and expense and solely under the name of the Developer (but
without prejudice to the Developer's or the Agency's rights against any responsible party: (i) remove, treat,
and dispose of the released Hazardous Material on the Site in compliance with all applicable
Environmental Laws, or if such removal is prohibited by any Environmental Laws, take whatever action is
required by any Environmental Law; (ii) take such other action as is necessary to have the full use and
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44
benefit of the Site as contemplated by this Agreement; and (iii) provide the Agency with satisfactory
evidence of the actions taken as required in this Section. The Developer shall provide to the Agency, within
thirty (30) days of the Agency's request there for, a bond, letter of credit or other financial assurance
evidencing to the Agency's satisfaction that all necessary funds are readily available to pay the costs and
expenses of the actions required by this Section and to discharge any assessments or liens established
against the Site as a result of the presence of the Hazardous Material release on the Site.
11. Insurance.
11.1 Required Insurance. Without limiting the Agency's rights to indemnification, the
Developer shall procure and maintain, at its own cost and expense, and furnish or cause to be fumished to
the Agency, evidence of the following policies of insurance naming the Developer as insured and, except
for Workers' Compensation insurance, the Agency as additional insureds. All such insurance shall be kept
in force until issuance of a Certificate of Compliance.
11.1.1 Liability Insurance. Commencing upon conveyance of the Property to the Developer,
the Developer shall maintain or cause to be maintained commercial general liability insurance, to protect
against loss from liability imposed by law for damages on account of personal injury, including death there
from, suffered or alleged to be suffered by any person or persons whomsoever on or about the Site and the
business of the Developer on the Site, or in connection with the operation thereof, resulting directly or
indirectly from any acts or activities of the Developer or anyone directly or indirectly employed or
contracted with or acting for the Developer, or under its respective control or direction, and also to protect
against loss from liability imposed by law for damages to any property of any person occurring on or about
the Site, or in connection with the operation thereof, caused directly or indirectly by or from acts or
activities of the Developer or any person acting for the Developer, or under its control or direction. Such
insurance shall also provide for and protect the Agency against incurring any legal cost in defending claims
for alleged loss. Such insurance shall be maintained in full force and effect until issuance of a Certificate of
Compliance and cover claims of damages suffered by persons or property, resulting from any acts or
omissions of the Developer, the Developer's employees, agents, contractors, suppliers, or consultants as
follows: commercial general liability in a general aggregate amount of not less than Two Million Dollars
($2,000,000) per occurrence and in the aggregate. The Developer shall deliver to the Agency a certificate
of insurance countersigned by an authorized agent of the insurance carrier and an Insurer endorsement
evidencing such insurance coverage prior to commencement of grading or demolition. The endorsement
shall name the Agency, the City and their respective officials, agents, representatives and employees as
additional insureds under the policy. The endorsement shall contain a statement of obligation on the part of
the carrier to notify the Agency of any cancellation or termination of the coverage at least thirty (30) days
in advance of the effective date of any such cancellation or termination. The endorsement shall provide that
coverage shall be primary to, and not contribute with any insurance or self-insurance maintained by the
Agency, and the policy shall contain such an endorsement. The Developer may substitute equivalent
liability insurance of its contractors, provided the insurance and endorsements meet the requirements of
Section 11.
11.1.2 Workers' Compensation Insurance. Commencing upon conveyance of the Property
to the Developer shall maintain or cause to be maintained workers' compensation insurance issued by a
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45
responsible carrier authorized under the laws of the State of California to insure employers against liability
for compensation under the workers' compensation laws now in force in California, or any laws hereafter
enacted as an amendment or supplement thereto or in lieu thereof. Such workers' compensation insurance
shall cover all persons employed by the Developer in connection with the Site and shall cover liability
within statutory limits for compensation under any such act aforesaid, based upon death or bodily injury
claims made by, for or on behalf of any person incurring or suffering injury or death in connection with the
Site or the operation thereof by the Developer. Notwithstanding the foregoing, the Developer may, in
compliance with the laws of the State of California and in lieu of maintaining such insurance, self-insure
for workers' compensation in which event the Developer shall deliver to the Agency evidence that such
self-insurance has been approved by the appropriate State authorities. The Developer shall also furnish (or
cause to be furnished) to the Agency evidence satisfactory to the Agency that any contractor with whom it
has contracted for performance of work on the Site or otherwise pursuant to this Agreement carries
workers' compensation insurance required by law. The endorsement for workers compensation shall
contain a waiver of subrogation for the benefit of the Agency.
11.1.3 Property Insurance. Commencing upon conveyance of the Agency Property to the
Developer, the Developer shall maintain or cause to be maintained for all buildings, a policy or policies of
insurance against loss or damage to the Site and the Project Improvements thereon and all property of an
insurable nature located upon the Site, resulting from fire, lightning, vandalism, malicious mischief, riot
and civil commotion, and such other perils ordinarily included in special clauses of property loss coverage
forni policies for the full replacement value of the Project Improvements, including builder's risk coverage
meeting the foregoing requirements during the pendency of any construction on the Site. Such insurance
shall be maintained in an amount not less than one hundred percent (100%) of the Full Insurable Value of
the:Project Improvements on the Site.
11.2 General Insurance Requirements.
11.2.1 The term "Full Insurable Value" as used in this Section 11 shall mean the cost
determined by mutual agreement of the Agency and the Developer (excluding the cost of excavation,
foundation and footings below the lowest floor and without deduction for depreciation) of providing
similar Project Improvements of equal size and providing the same habitability as the Project
Improvements immediately before such casualty or other loss, but using readily-available contemporary
components, including the cost of construction, architectural and engineering fees, and inspection and
supervision.
11.2.2 All insurance provided under this Section 11 shall be for the benefit of the Developer
and the Agency. The Developer agrees to timely pay all premiums for such insurance and, at its sole cost
and expense, to comply and secure compliance with all insurance requirements necessary for the
maintenance of such insurance. All insurance herein provided for under this Section 11 shall be provided
by insurers authorized to do business in the State of California and with a Best's rating of A-X or better,
with the exception of workers compensation, where the City will accept insurers rated B or better or
coverage from the State Compensation Fund.
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11.2.4 If the Developer fails or refuses to procure and maintain insurance as required by
this Agreement, the Agency shall have the right, at the Agency's election, and upon ten (10) days prior
notice to the Developer, to procure and maintain such insurance. The premiums paid by the Agency shall
be treated as a loan, due from the Developer, to be paid on the first day of the month following the date on
which the premiums were paid. The Agency shall give prompt notice of the payment of such premiums,
stating the amounts paid and the name of the insured(s).
12. Covenants and Restrictions.
12.1 Use Covenant. The Developer covenants and agrees for itself, its successors, its assigns
and every successor in interest to the Site or any part thereof, that the Developer, its successor and assigns
shall use the Site only for those uses specified in this Agreement.
12.2 Maintenance Covenant.
12.2.1 Following Close of Escrow. After the date of acquisition by the Developer of the
Site, the Developer and its successors and assigns shall maintain the Site in the same aesthetic and sound
condition (or better) as the condition of the Property at the time of the transfer of the Property to the
Developer.
(a) From the date of commencement of construction until issuance of a
Certificate of Compliance, the Developer and its successors and assigns shall maintain the Project
Improvements on the portions of the Site under construction consistent with best construction industry
practice.
(b) After completion of all or any portion of the Project Improvements, and in
perpetuity, the Developer, its successors and assigns shall maintain the Project Improvements on the Site in
the same aesthetic and same condition or better as the condition of such Project Improvements at the time
the Agency issues a Certificate of Compliance, reasonable wear and tear excepted. The standard for the
quality of maintenance of the Project Improvements required by this Section 12.2.2 shall be met whether or
not a specific item of maintenance is listed below. However, representative items of maintenance shall
include: (i) maintenance, repair and replacement on a regular schedule, consistent with like developments
in Riverside County, of private streets, roads, drives, bike paths, sidewalks, utilities (except to the extent
owned or controlled by a utility franchisee) common areas, landscaping, hardscaping and fountains; (ii)
frequent and regular inspection for graffiti or damage or deterioration or failure, and immediate repainting
or repair or replacement of all surfaces, fencing, walls, equipment, etc., as necessary; (iii) emptying of trash
receptacles and removal of litter; (iv) regular sweeping of roadways and sidewalks throughout the Site; (v)
fertilizing and replacing vegetation as necessary; (vi) cleaning windows on a regular basis; (vi) painting the
buildings on a regular program and prior to the deterioration of the painted surfaces; (vii) conducting roof
inspections on a regular basis and maintaining roofs in a leak-free and weather-tight condition.
(c) In the event the Developer or its successors or assigns fails to maintain the
Project Improvements in accordance with the above-described standards for the maintenance, the Agency
or its designee shall have the right but not the obligation to enter the Site upon reasonable notice to the
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Developer or its successor or assigns, correct any violation, and hold the Developer, or such successors or
assigns, responsible for the cost thereof, and such cost, until paid, shall constitute a lien on the Site.
(d) With Agency's written consent, which shall not be unreasonably withheld,
the Developer shall have the right to assign all of the maintenance responsibilities contained herein to
subsequent purchasers and/or to any maintenance association, upon which assignment the Developer shall
have no further liability under this Section.
12.3 Nondiscrimination and Equal Opportunity.
12.3.1 Obligation to Refrain from Discrimination. The Developer covenants and agrees for
itself, its successors, its assigns and every successor in interest to the Site or any part thereof, there shall be
no discrimination against or segregation of any person, or group of persons, on account of race, color,
creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the Site nor shall the Developer itself or any person
claiming under or through it establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees of the Site.
12.3.2 Fonn of Nondiscrimination Clauses. All deeds, leases or contracts shall contain or
be subject to substantially the following non-discrimination clauses:
(a) In deeds: "The grantee herein covenants by and for itself, its successors and
assigns, and all persons claiming under or through them, that there shall be no discrimination against or
segregation of, any person or group of persons on account of race, color, creed, religion, sex, sexual
orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under
or through it, establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees in the land herein conveyed. The foregoing covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and for itself, its successors and
assigns, and all persons claiming under or through them, and this lease is made and accepted upon and
subject to the following conditions:
"That there shall be no discrimination against or segregation of any person or group of
persons, on account of race, color, creed, religion, sex, sexual orientation, marital status,
national origin or ancestry in the leasing, subleasing, renting, transferring, use,
occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any
person claiming under or through it, establish or permit such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein
leased."
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(c) In contracts: "There shall be no discrimination against, or segregation of any
person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land.
12.4 Deed Restrictions/Covenants Running with the Land.
12.4.1 The obligations of the Developer set forth in this Agreement are covenants running
with the land and equitable servitudes and shall be binding upon the Developer and all subsequent
Assignees and Ownership Transferees owning all or any portion of the Site, for the benefit of the Agency
and the successors and assigns of the Agency. The Grant Deed shall provide that any future transfer or
conveyance of the Site or any portion thereof shall, unless and until released by the Agency in accordance
with the provisions of Section 9.2, shall include notice of the covenants, conditions and restrictions
contained herein. The Grant Deed shall convey the Agency Parcel subject to reservations, covenants and
restrictions as set forth in this Agreement, the Permitted Exceptions, and any other matters specifically
agreed to by the Developer in writing or which the Developer is deemed to have accepted.
12.4.2 To effectuate this Section 12.4 with respect to the Agency Parcel, concurrently with
and as a condition of the Closing, the Developer and the Agency shall execute and cause the recordation of
the Memorandum of DDA, which shall make specific reference to the non-discrimination provisions set
forth in this Section 12 Agency's Right of Reversion, set forth in Section 16. the release set forth in
Section 4.5.2, the indemnities set forth in Section 10 and such other restrictions, equitable servitudes or
covenants running with the land set forth herein as the Agency may deem necessary or appropriate to carry
out this Agreement. This Agreement, the Memorandum of DDA and the Right of Reversion shall be a lien
of first priority with respect to the Property and shall be superior in priority to all Mortgages.
13. [Reserved.]
14. Potential and Material Defaults.
14.1 Potential Defaults. Except as otherwise provided in this Agreement, in the event either
Party (the "Defaulting Party") fails to perform, or delays in the performance of, any obligation, in whole
or in part, required to be performed by the Defaulting Party as provided in this Agreement (a "Potential
Default"), the other Party (the "Injured Party") may give written notice of such Potential Default to the
Defaulting Party, which notice shall state the particulars of the Potential Default. The Agency and the
Developer agree to cooperate in good faith and meet and confer regarding such default.
14.2 Material Defaults.
14.2.1 A Potential Default (other than a Potential Default regarding the payment of money,
which is addressed in Section 14.3) shall become a "Material Default" in the event the Potential Default is
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not cured, at the Defaulting Party's expense, (a) within twenty (20) Business Days after written notice of
such Potential Default from the Injured Party, or (b) if such cure cannot be reasonably accomplished within
such twenty (20) Business Day period, within ninety (90) days after receiving written notice of such
Potential Default, but only if the Defaulting Party has commenced such cure within such twenty (20)
Business Day period and diligently pursues such cure to completion, or (c) within such longer period of
time as may be expressly provided in this Agreement with respect to the Potential Default. The time
periods set forth above to cure a Potential Default may be extended by Force Majeure Delays. Following
written notice and failure to cure within the time periods set forth above, each Potential Default shall
become a Material Default that shall be deemed to have occurred upon the expiration of the applicable cure
period.
14.2.2 In the event the Developer is in Material Default, in addition to whatever other rights
the Agency may have in law or at equity, or as otherwise provided in this Agreement, the Agency may do
any or a]I of the following:
(a) The Agency shall have the right (the "Right of Purchase"), from time to
time, at any time within three (3) years after the date that the Developer became in Material Default
(provided that upon Developer's cure of such Material Default, such right shall cease with respect to such
Maternal Default only), to purchase any, or all, interests of the Developer or any successor in interest of the
Developer, in any Parcel(s) or Lot(s), together with the Project hnprovements thereon.
(b) The Agency may sue for damages it may have incurred related to any
Parcel(s) or Lot(s) that the Agency has not elected to purchase as provided in Section 14.2.2 above. In the
event the Agency institutes legal action to recover damages, the Agency's night to purchase the Parcel(s) or
Lot(s), as provided in above, for which suit is brought shall terminate and be of no further force or effect.
(c) The Agency may seek to specifically enforce the obligations of the
Developer.
(d) The Agency may terminate this Agreement with respect to all, or ally portion
of the Site.
(e) The Agency may exercise its Right of Reversion pursuant to Section 16.
14.2.3 If the Agency elects to repurchase any, or all, Parcel(s) or Lot(s) pursuant to Section
14.2.2(a). the Parties shall: (a) within five (5) Business Days after the date of either the Agency's election to
purchase, or the Developer's notice to exercise its right to cause the purchase (but in either event no earlier
than the first date on which the Agency tither has the right to purchase), open an escrow with an escrow
agent designated by the Agency for the purchase and sale, and shall execute an escrow agreement that shall
provide that the Developer shall pay all costs of the escrow and shall include such usual and ordinary terms
as are reasonably required by the escrow agent and by the transaction; (b) no later than five (5) Business
Days after the opening of escrow (i) the Developer shall deposit into the escrow appropriate grant deeds
conveying fee title to the Parcel(s) or Lot(s) to the Agency free and clear of any and all liens, claims, and
encumbrances other than: monetary liens which total less that the purchase price to be paid by the Agency,
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encumbrances and claims other than monetary liens that were of title as of the date of the Closing, and any
liens, claims, or encumbrances approved in writing by the Agency and (ii) the Developer and the Agency
shall commence the procedure specified in Section 14.2.4 to determine the Fair Market Value of the
affected Parcel(s) or Lot(s); and (c) no later than twenty (20) Business Days after the Fair Market Value of
such Parcel(s) or Lot(s) has been determined as provided in Section 14.2.4, the Agency shall deposit into
the escrow the purchase price, less the aniount of any monetary liens against the Parccl(s) or Lot(s). The
escrow shall close, and title shall be conveyed to the Agency, no later than five (5) Business Days after the
Agency has deposited into escrow the appropriate portion of the purchase price. The Developer shall
comply with its obligations under Section 14.2.5 and shall directly from escrow, pay to Permitted
Mortgagee all sums due to it. In no event shall the Agency have any liability for the failure of Developer to
pay to Permitted Mortgagee any sums due to it under its loan documents with Developer.
14.2.4 Determination of Fair Market Value. The Fair Market Value of the Parcel(s) (Fair
Market Value") and/or Lot(s) that the Agency has elected to repurchase ("Repurchase Property") shall
be determined by one or more real estate appraisers selected as hereafter provided, all of whom shall be
members of The Appraisal Institute and Certified General Appraisers in the State of California with not
less than ten (10) years experience in appraisal of commercial properties in Riverside County, California.
Within five (5) Business Days after Developer's receipt of written notice of the City's election to
repurchase ("Selection Period") each Party shall select one (1) appraiser ("Appraiser") and shall notify the
other Party in writing of the Appraiser so selected. Each Appraiser shall deliver to both Parties their written
determinations of the fair market value of the Repurchase Property on the date that is twenty (20) days after
expiration of the Selection Period (the "Determination Date"). If the difference between the fair market
values determined by the Appraisers does not exceed ten percent (10%) of the lesser of such appraised
values, then the Fair Market Value shall be the average of the appraisals. I£ however, the difference
between the appraisals shall exceed ten percent (10%) of the lesser of such amounts, then the Appraisers
shall, within five (5) Business Days following the Determination Date select a third appraiser meeting the
qualifications stated above ("Third Appraiser") who shall provide his or her written determine of the fair
market value of the Repurchase Property within twenty (20) calendar days after his or her selection. If there
is a third appraisal, the Fair Market Value for the Repurchase Property shall be the average of the two (2)
appraisals nearest in value. The Parties shall each bear the cost of the Appraiser they select and shall share
equally the cost of the Third Appraiser. All such determinations of Fair Market Value shall be final and
binding upon the Parties.
14.2.5 In the event the Agency is to purchase any Parcel(s) or Lot(s) by reason of the
exercise by the Agency of its election to do so upon a Material Default by the Developer, such purchase
shall not terminate or release any liability or obligations of the Developer with respect to said Parcel(s) or
Lot(s) to return any written Due Diligence Information to the Agency as provided in Section 14.4 and to
indemnify the Agency as provided in Sections 5.1 and 10. In the event the Agency purchases any Parcel(s)
or Lot(s), under no circumstances shall the Developer have any right or claim to, or against, the purchased
Parcel(s) or Lot(s) or any portion thereof In addition the Agency's right to retain and enforce any
Performance Bonds delivered pursuant to this Agreement shall survive such purchase, and the Agency shall
have no obligation to reimburse the Developer for any Reimbursable Costs or to release any Performance
Bonds. In addition, the Developer shall represent and warrant that all construction of all Project
Improvements on the purchased Parcel(s) or Lot(s) as of the date of purchase is in conformity with all
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applicable laws and Governmental Requirements. Notwithstanding the purchase of any Parcel(s) or Lot(s)
by the Agency as provided in this Section, this Agreement shall remain in full force and effect with respect
to the portions of the Developer Parcel not purchased by the Agency.
14.3 Failure or Delay in Notice. Failure or delay in giving notice of a Potential Default shall not
constitute a waiver of any default, nor shall it change the time of default. Except as otherwise expressly
provided in this Agreement, any failures or delays by either Party in asserting any of its rights and remedies
as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by
either Party in asserting any of its rights and remedies shall not deprive either Party of its right to institute
and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such
rights or remedies.
14.4 Developer Information and Products. Upon full performance of this Agreement or the
termination thereof due to a Material Default by the Developer, the Developer shall provide the Agency,
without cost or expense to the Agency, copies of all plans, specifications, reports, studies or investigations,
including soil and geoteclnical reports and Hazardous Materials investigations (collectively, "Reports")
prepared by or on behalf of the Developer with respect to the Site and/or development of the Project, which
shall in each case be made for the use and benefit of the Developer and the Agency. If this Agreement is
terminated for any reason other than a Material Default hereunder by the Agency, the Agency may request
that the Developer, for consideration to be mutually agreed, transfer the Developer's rights to any or all
Reports identified by the Agency, but under no event shall the cost to the Agency exceed five hundred
dollars ($500.00). Upon such request, the Developer shall deliver to the Agency copies of all Reports
requested by the Agency, provided that the Developer makes no representations, warrantee or guarantee
regarding the completeness or accuracy of the Reports, the Developer shall have no liability in connection
with the use of the Reports by the Agency or any other person or entity and the Developer does not
covenant to convey the copyright or other ownership rights of third parties thereto. Such Reports shall
thereupon be free of all claims or interests of the Developer or any liens or encumbrances. Upon the
Agency's acquiring the Developer's rights to any or all of the Reports, the Agency shall be permitted to use,
grant, license or otherwise dispose of such Reports to any person or entity for development of the Site or
any other purpose; provided, however, that the Developer shall have no liability whatsoever to the Agency
or any transferee or title to the Reports in connection with the use of the Reports. The Agency shall, within
ten (10) Business Days of the Effective Date and at no cost to the Developer, provide the Developer with
copies of all plans, reports, studies, investigations and other materials the Agency may have that are
pertinent to the Site and/or development of the Project provided, however, that the Agency makes no,
representations, warrantee or guarantee regarding the completeness or accuracy of such plans, reports,
studies, investigations and other materials.
14.5 Failure to Timely Pay Amounts Due. Notwithstanding any other provision of this
Agreement, if a Party fails to pay timely any sum required to be paid pursuant to this Agreement, and the
Injured Party gives the Defaulting Party written notice of such nonpayment, such nonpayment shall be a
Potential Default. The Defaulting Party shall have a period of fifteen (15) calendar days after such notice is
received, or deemed to have been received, within which to cure the Potential Default by making the
required payment; the period to cure such Potential Default shall not be extended by Force Majeure Delays.
In the event a Potential Default for nonpayment is not cured within said fifteen (15) calendar day period,
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the Potential Default shall become a Material Default that shall be deemed to have occurred upon the
expiration of the cure period. Notwithstanding the foregoing, and provided that notice of the Potential
Default is provided the Defaulting Party, if any payment (other than the payment of any portion of the
Purchase Price) is not received by the Injured Party within fifteen (15) calendar days following the notice
of Potential Default, then in addition to any other remedies conferred upon the Injured Party pursuant to
this Agreement, a late charge of ten percent (10%) of the amount due and unpaid will be added to the
delinquent arnount to compensate the Injured Party for the expense of handling the delinquency.
15. Nonoccurrence of a Closing Condition.
15.1 Failure of a Closing Condition to Occur Absent a Material Default.
15.1.1 In the event the Closing Date is extended for any of the reasons set forth in this
Section 15.1 not caused by a Material Default by either Party, either Party shall have the right to terminate
this Agreement as hereinafter provided:
(a) In the event a final decision in any litigation brought by a third party results
in the inability of the Agency to convey the Property to the Developer, or of the Developer to perform its
material obligations hereunder, either Party shall have the right, upon ninety (90) days prior written notice
to the other Party, to terminate this Agreement.
(b) In the event litigation brought by a third party is pending for more than one
year after the date of this Agreement, and (i) such litigation has resulted in the inability of the Agency to
convey the Property to the Developer, or (ii) in the event the Executive Director or designee reasonably
determines that such litigation is the cause of the Developer or its Assignee's inability to perform its
material obligations hereunder despite the best efforts of such Party to do so, either Party shall have the
right, upon ninety(90) days prior written notice to the other Party, to terminate this Agreement.
(c) In the event of the passage of a referendum or initiative that results in the
inability of the Agency to convey the Property to the Developer or the inability of the Developer or any
Assignee to perform its material obligations hereunder, either Party shall have right, upon ninety (90) days
prior written notice to the other Party, to terminate this Agreement.
15.1.2 If this transaction does not close on or before 5:00 p.m., California Time, on the
Closing Date, because of (a) the inability of the Parties to agree on modifications to this Agreement
following good faith negotiations or (b) the failure to occur of a Closing Condition for reasons other than
(i) a Material Default solely by the Developer (which is governed by Section 15.2); (ii) a Material Default
solely by the Agency (which is governed by Section 15.3), or (iii) a Material Default by both Parties
(which is governed by Section 15.4), either Party may, by delivery of written notice to the other and to the
Escrow Holder, terminate this Agreement. In the event either the Developer or the Agency are in Potential
Default as of the Closing Date, the Party in Potential Default shall not have the right to exercise the right to
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terminate the Agreement pursuant to this Section 15.1 until and unless the Potential Default is cured prior
to the time the Potential Default becomes a Material Default.
15.1.3 Upon any termination under Section 15.1.1 or 15.1.2, each Party shall pay one-half
(1/2) of Escrow Holder's normal cancellation charges and any Closing Costs. Developer shall be
responsible for payment of all of Agency's actual costs incurred (including legal fees, consultant fees, and
staff costs) in connection with the negotiation of this Agreement, not to exceed $25,000. In the event of a
termination as provided in this Section, the Developer shall return Information to the Agency as provided
in Section 14.4 and shall indemnify the Agency as provided in Sections 5.1 and 10. The termination of this
Agreement pursuant to this Section 15.1 shall constitute a waiver of any rights, claims, causes of action, or
demands either Party may have against the other or the Property, or any portion thereof, but shall not
terminate or release any liability or obligations of the Developer to return Due Diligence Information to the
Agency as provided in Section 14.4 and to indemnify the Agency as provided in Sections 5.1 and 10 or to
pay gency's actual costs incurred, not to exceed $25,000. In the event of a termination as provided in this
Section, under no circumstances shall the Developer have any right or claim to, or against, the Property or
any portion thereof.
15.2 Failure to Close, Material Default of Developer.
IF THIS TRANSACTION DOES NOT CLOSE ON OR BEFORE 5:00 P.M.,
CALIFORNIA TIME, ON THE CLOSING DATE, SOLELY AS A RESULT OF DEVELOPER'S
MATERIAL DEFAULT (INCLUDING FAILURE TO DELIVER SUFFICIENT FUNDS TO CAUSE
THE CLOSING TO OCCUR IN A TIMELY MANNER, IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 4.2.2), THE PARTIES ACKNOWLEDGE AND AGREE BY INITIALING THIS
AGREEMENT IN THE SPACE PROVIDED BELOW THAT:
(a) THE AGENCY'S ACTUAL COSTS, INCLUDING LEGAL COSTS AND
CONSULTANT COSTS, INCURRED IN PREPARING AND NEGOTIATING THIS DDA AND
PREPARING THE ENVIRONMENTAL DOCUMENTATION BEAR A REASONABLE
RELATIONSHIP TO THE DAMAGES WHICH THE PARTIES ESTIMATE MAY BE SUFFERED BY
THE AGENCY AS THE RESULT OF DEVELOPER'S DEFAULT IN THE PERFORMANCE OF ITS
OBLIGATIONS UNDER THIS AGREEMENT. DEVELOPER SHALL PAY ALL OF AGENCY'S
ACTUAL COSTS INCURRED TO THE CLOSING DATE, WHICH ARE ESTIMATED TO BE
$25,000.00.
(b) DEVELOPER SHALL PAY THE FULL AMOUNT OF ESCROW
AGENT'S REASONABLE CHARGES AS A RESULT OF SUCH DEFAULT AND TERMINATION
AND ALL CLOSING COSTS, WHETHER OR NOT DEVELOPER CONTESTS SUCH
TERMINATION.
(c) WITHIN FIVE (5) DAYS FOLLOWING THE CITY'S NOTICE OF
TERMINATION, DEVELOPER SHALL RETURN TO THE CITY ALL INFORMATION DESCRIBED
IN SECTION 14.4.
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(d) AS A RESULT OF DEVELOPER'S DEFAULT IN THE PERFORMANCE
OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND FAILURE OF THE CLOSING TO OCCUR
ON OR BEFORE THE CLOSING DATE, THE CITY SHALL HAVE THE RIGHT TO TERMINATE
THIS AGREEMENT AND THE ESCROW BY WRITTEN NOTICE TO ESCROW AGENT
WHEREUPON THE AGENCY SHALL BE RELEASED FROM ITS OBLIGATION HEREUNDER TO
SELL THE PROPERTY TO DEVELOPER OR DEVELOPER'S PERMITTED ASSIGNEE. IF
DEVELOPER HAS DEPOSITED THE SUPPLEMENTAL DEPOSIT, DEVELOPER SHALL BE
ENTITLED TO A REFUND, SUBJECT TO AGENCY'S RIGHT OF SET OFF FOR ITS ACTUAL
COSTS INCURRED. NOTHING HEREIN AFFECTS THE AGENCY'S RIGHTS AND REMEDIES
FOR A SEPARATE BREACH IF ANY, OF THE CONFIDENTIALITY AND/OR INDEMNIFICATION
PROVISIONS OF THIS AGREEMENT AND (c) ABOVE GOVERNING THE RETURN OF
INFORMATION TO THE AGENCY.
Initials of Agency Initials of Developer
15.3 Failure to Close Material Default of Agenev.
15.3.1 If this transaction does not close on or before 5:00 p.m., California time, on the
Closing Date, solely as a result of the Agency's Material Default in the performance of its obligations
under this agreement, than, so long as the Developer is not in Potential Default or Material Default, the
Developer shall have the right, by providing notice to the Agency, of its election to do so, either: (a) to
purchase the Property pursuant to the Agreement notwithstanding such default, whereupon such default
shall be deemed waived as against the Agency and all third parties; or (b) to terminate this Agreement and
to cancel Escrow.
15.3.2 In the event Agency receives timely notice of the Developer's election to purchase
the Property notwithstanding the Agency's Material Default, the Developer shall deliver Developer's
Supplemental Deposit into Escrow no later than ten (10) Business Days after the Agency's receipt of said
notice. Upon delivery of Developer's Supplemental Deposit and Closing Costs into Escrow and payment by
Escrow Holder of the Purchase Price to the Agency, the Agency shall convey title to the Property as
provided in this Agreement, and the Developer shall be deemed to have waived all Closing Conditions
other than the delivery of the Grant Deed into Escrow. In the event the Agency fails to deliver the Grant
Deed into Escrow within five (5) Business Days after the Developer has delivered the appropriate portion
of the Purchase Price into Escrow, the Developer shall have the right to bring an action in equity or
otherwise against the Agency or subsequent owners of the Property for specific performance of this
Agreement. In such event the Agency shall pay the full amount of Escrow Holder's reasonable charges and
Closing Costs.
15.3.3 In the event the Agency receives timely notice of the Developer's election to
terminate this Agreement:
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(a) The Agency shall pay the full amount of Escrow Holder's reasonable charges
and all closing costs. The Developer shall comply with its obligations under Section 14.4 Developer shall
not be entitled to pursue an action against the Agency for damages as a result of the Agency's default.
(b) The termination of this Agreement pursuant to this Section 15.3.3 shall not
terminate or release any liability or obligations of the Developer: to return Due Diligence Information to
the Agency as provided in Section 14.4 and to indemnify the Agency as provided in Sections 5.1 and 10. In
the event of a termination as provided in this Section, under no circumstances shall the Developer shall
have any right or claim to, or against, the Property or any portion thereof.
(c) The termination of this Agreement pursuant to this Section 15.3.3 shall
constitute a waiver of any rights, claims, causes of action, or demands either Party may have against the
other, except as expressly provided above.
(d) In the event either (i) the Agency does not receive, within twenty (20)
Business Days after the Closing Date, notice of the Developer's election either to purchase the Property
pursuant to the Agreement notwithstanding such default or to terminate this Agreement, or (b) the
Developer has elected to purchase the Property but fails to deliver Developer's Supplemental Deposit into
Escrow no later than ten (10) Business Days after the Agency's receipt of said notice, then the Agency shall
have the right to terminate this Agreement by providing written notice of its election to do so to the
Developer. In the event of a termination as provided in this Section, the Developer shall return Due
Diligence Information to the Agency as provided in Section 14.4 and shall indemnify the Agency as
provided in Sections 5.1 and 10. The termination of this Agreement pursuant to this Section 15.3.3 shall
constitute a waiver of any rights, claims, causes of action, or demands either Party may have against the
other, but shall not terminate or release any liability or obligations of the Developer to return Due
Diligence Information to the Agency as provided in Section 14.4 and to indemnify the Agency as provided
in Sections 5.1 and 10. hi the event of a termination as provided in this Section, under no circumstances
shall the Developer shall have any right or claim to, or against, the Property or any portion thereof, and the
Agency shall have no obligation to reimburse the Developer for any Reimbursable Costs or to release any
Perfonnance Bonds.
15.4 Material Default by Both Parties.
15.4.1 If this transaction does not close on or before 5:00 p.m., California time, on the
Closing Date as a result of the Material Default by both Parties in the performance of their respective
obligations under this Agreement, the provisions of this Section 15.4 shall apply.
15.4.2 If the Developer is in Material Default of its obligation to deliver Developer's
Supplemental Deposit as described in Section 4.2.2(b), or to provide the evidence of financing as provided
in Section 7.3.4, and the Agency has deposited into Escrow the Grant Deed as provided in Section 7.2.1,
the Agency shall have the right, notwithstanding any other defaults of the Agency, to tenminate this
Agreement as provided in Sections 15.1.2 and 15.1.3.
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15.4.3 If the Agency is in Material Default of its obligation to deposit into Escrow the Grant
Deed as provided in Section 7.2.1 and the Developer has delivered Supplemental Purchase Price Deposit
and funds for other costs as provided in Section 7.3.2, and has provided the evidence of financing as
provided in Section 7.3.4, the Developer shall have the right, notwithstanding any other defaults of the
Developer, to terminate this Agreement as provided in Sections 15.1.2 and 15.1.3.
15.4.4 Except as provided above in Sections 15.4.2 and 15.4.3, in the event both parties are
in Material Default, each Party may exercise any and all rights it may have to seek monetary damages from
the other Party. Notwithstanding the foregoing, in no event may either Party be entitled to specific
performance or other equitable relief, and in no event shall the Developer file a lis pendens against the
Property.
16. Right of Reversion.
16.1 Right of Reversion. On the terms subject to the conditions set forth in this Section 16 the
Agency shall have the right (the "Right of Reversion"), (a) to terminate this Agreement as to (i) the Site or
Lot(s), or any portions thereof, directly impacted by the Material Default, and/or (i) any other portion of the
Developer Parcel with respect to which the Developer has not commenced construction of Project
hnprovements (as applicable, the "Reversion Area") and (b) thereafter to re-enter the Reversion Area and
revest in the Agency the title in the Agency Parcel or any Reversion Area or any portions thereof.
16.1.1 Conditions to Exercise. The provisions of this Section 16.1.1 shall apply in the
event that after the Closing any of the events or omissions set forth in this Section 16.1.1 occur, which such
events and omissions shall each be a Potential Default:
(a) At no fault of Agency, the development of the Project is delayed such that the
occurrence of any event described in the Schedule of Performance does not occur on or before the date
projected for its occurrence, as such date may be extended by Force Majeure Delay.
(b) In the absence of a City or Agency directive to stop work, the Developer
abandons or substantially suspends construction of any Project Improvements for a period of ninety (90)
days, which 90-day period shall be subject to Force Majeure Delay.
(c) The Developer, in violation of this Agreement, assigns this Agreement, or
any rights in this Agreement, or transfers, or suffers any involuntary transfer of the Site or the Developer's
interest in the Site, or any part thereof.
(d) Any voluntary or involuntary Ownership Transfer or Transfer of Control,
including any Foreclosure affecting all or any portion of the Site by any Mortgagee takes place without
express assumption by the Ownership Transferee of the Developer's obligations under this Agreement in
accordance with Section 2.2.
16.1.2 Reverting Conditions. Notwithstanding that such portion of the Site may be
encumbered by one or more Mortgages or Permitted Mortgages, the Agency shall be entitled to exercise its
November 10,2005
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Right of Reversion with respect to all or any portion of the Site in the event of the following (the
"Reversion Conditions"):
(a) the occurrence of any of the events or omissions described in Section 16.1.1
becoming a Material Default of the Developer and the provision of written notice to the Developer and
each Permitted Mortgagee as required in Section 2.7.14.
(b) provision by the Agency of notice in accordance with Sections 2.7.15 and
17.7 to each Permitted Mortgagee having a Permitted Mortgage on the affected portion of the Site, of a
Material Default by the Developer remaining uncured after passage of the time periods set forth in this
Agreement for cure thereof by the Developer
(c) failure of any Pennitted Mortgagee to cure such Material Default in
accordance with the provisions of Section 2.7.15(b).
Notwithstanding the foregoing, if any Permitted Mortgagee has commenced and diligently
prosecuted to completion Foreclosure proceeding in accordance with Section 2.7.14, then (i) the Agency's
right to exercise the Right of Reversion triggered by such Material Default shall be stayed for a period of
three (3) years from the date upon which the Permitted Mortgagee, or wholly-owned designee, obtains title
to such portion of the Site, and (ii) thereafter may only be exercised with respect to that particular Material
Default if such Permitted Mortgagee, or wholly-owned designee, has not within such three (3) year period
(which period will not be extended by Force Majeure Delay) either: (A) assumed all obligations of the
Developer under this Agreement, including the obligation to construct the Project hmprovements in
accordance with a revised Schedule of Performance agreed to by the Permitted Mortgagee or wholly-
owned designee and the Agency, and, thus, to step into the role of Developer hereunder and commenced
and diligently prosecuted the construction of the Project Improvements, or (B) sold the affected portion of
the Site.
The satisfaction of the Reversion Conditions with respect to each independent Material
Default serves to trigger (or re-trigger) the Agency's Right of Reversion, subject in each case to the
potential stay set forth in the preceding paragraph.
16.1.3 Exercise of Right of Reversion. So long as the Material Default triggering the
Right of Reversion has not been cured as of the date of exercise of the Right of Reversion, the Agency may
exercise its Right of Reversion at anytime within one (1) year after such Right of Reversion could first be
exercised with respect to such Material Default. The Agency may exercise such right by delivery of notice
to (a) the Developer if no Foreclosure has occurred, and (b) all Permitted Mortgages with respect to the
Reversion Area or any portion thereof, provided that the Agency shall not exercise the Agency's Right of
Reversion without first providing the Developer, if applicable, and all Permitted Mortgagees holding
Permitted Mortgages with respect to the Reversion Area or any portion thereof a reasonable opportunity to
address the Agency Board of Directors at a public meeting. In the event of such termination of this
Agreement, this Agreement shall remain in full force and effect with respect to portions of the Site not so
revested in the Agency, but the termination of this Agreement shall only be effective as of the date title to
the Reversion Areas is revested in the Agency.
N.,e.be,10,2005
58
16.2 Priority of the Amey's Right of Reversion.
16.2.1 Right of Reversion Subordinate only to Senior Obligations. Prior to the later to
occur of(a) the initial funding of a loan for the construction of Private Improvements, the Agency's Right
of Reversion shall be senior in priority to any lien, including Pennitted Mortgages, except for Senior
Obligations as set forth in Section 16.2.2, encumbering the Site or portion thereof, such that if the Agency
exercises its Right of Reversion, in accordance with the provisions of this Section 16, all such liens and
mortgages other than such Senior Obligations will be extinguished and the Agency will be revested of title
to the title to the Reversion Parcel free and clear of all such liens and mortgages, other than Senior
Obligations as provided below.
16.2.2 Right of Reversion Subordinate to Pennitted Mortgages for Private Improvements.
Concurrently with the later to occur of (a) the initial funding of a loan for the construction of Private
Improvements, the Agency's Right of Reversion shall become subordinate to, and the Agency shall execute
such written instruments for the subordination of its Right of Reversion as may reasonably be requested by
the holder of the lien of any Community Facilities District or other financing bonds issued with respect to
such Parcel and the lien of any Pennitted Mortgagee providing funding for Private Improvements
(collectively, a "Senior Obligation"). The subordination of the Right of Reversion and the Agency's
agreement to so subordinate its Right of Reversion is subject to agreement by the holder of any Senior
Obligation to which the Agency's Right of Reversion is to be subordinated, in writing, [providing the
Agency the following rights:]
(a) Upon the occurrence of a default under any of the Senior Obligation
documents, the holder of the Senior Obligation shall promptly notify the Agency of the occurrence of such
event of default, which notification shall be provided to the Agency contemporaneously with the delivery
to the Developer or its Assignee of any notice of default under any of the Senior Obligation documents;
(b) The Agency shall have the right, during the cure periods which apply to the
Developer or its Assignee pursuant to the Senior Obligation documents and any cure period which may
apply to the Agency under applicable law, to cure the Developer's or its Assignee's default relative to the
Senior Obligation; and
(c) After a default on any of the Senior Obligation documents but prior to a
Foreclosure, the Agency shall have the right to take title to the Reversion Area or any portion thereof and
cure the default relative to the Senior Obligation documents, without the holder of the Senior Obligation
exercising any right it might otherwise have to accelerate the Senior Obligation by reason of such title
transfer, so long as the Agency promptly cures any such default upon taking title. In the event that
additional uncured events of default under the Senior Obligation documents occur after the Agency has
taken title to the Reversion Area, all Permitted Mortgagees will be able to foreclose under the Permitted
Mortgages.
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(d) Upon the reversion to the Agency of title to the Reversion Area, the Agency
shall use reasonable commercial efforts to resell the Reversion Area acquired by the Agency, as soon and
in such manner as the Agency shall find feasible and consistent with the approved Entitlements to a
qualified and responsible party or parties (as determined in the sole discretion of the Agency), who will
assume the obligation of making or completing the Project Improvements, or such other improvements
approved by the Agency with the uses specified in the approved Entitlements. Upon such resale of the
Reversion Area or any part thereof, the proceeds thereof, if any, shall be applied:
(i) First, but subject to the provisions of clause ii below if there exists
any Senior Obligation, to reimburse the Agency for all costs and expenses incurred by the Agency,
including salaries of personnel engaged in such action, in connection with the recapture, management and
resale of the Reversion Area or any part thereof, all taxes, assessments and water and sewer charges with
respect to the Reversion Area or any part thereof, any payments made or necessary to be made to discharge
or prevent from attaching or being made any subsequent encumbrances or liens due to obligations incurred
with respect to the making or completion of the agreed Project Improvements or any part thereof on the
Reversion Area , or any part thereof, and any amounts otherwise owing to the Agency by the Developer
and its successor or transferee;
(ii) Second, to reimburse the Developer, its successor or transferee, up to
the amount equal to: the portion of the Base Purchase Price allocated to the reversion property on a square
footage basis and the Reimbursable Costs incurred by the Developer for the development of the Reversion
Area, or any part thereof, less the amounts paid on any Permitted Mortgage pursuant to clause ii .
(iii) Any balance remaining after such reimbursements shall be retained
by the Agency as its property.
16.2.3 Termination of Right of Reversion. In connection with every grant deed for a parcel
or Lot on the Site, the Agency shall direct the escrow company to extinguish and release the Agency's
Right of Reversion as to such Unit or Building, upon the occurrence of all of the following:
(a) Issuance by the Agency of a certificate of occupancy;
(b) Recordation of a Notice of Completion relating to the Building by the
Developer, its Assignee, or such Party's contractor;
(c) Any mechanic's liens that have been recorded or stop notices that have been
delivered have been paid, settled or otherwise extinguished, discharged, released, waived, bonded around
or insured against;
(d) Agency approval of the Deed for each such Parcel or Lot; and,
(e) Close of Escrow as to such Parcel or Lot.
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17. General Provisions.
17.1 Consent to Jurisdiction. The Parties hereto agree that all actions or proceedings arising in
connection with this Agreement shall be tried and litigated exclusively in the Municipal or Superior Court
of the County of Riverside, State of California, in any other appropriate court of that county, or in the
United States District Court for the Central District of California. This choice of venue is intended by the
Parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation
between or among the Parties with respect to or arising out of this Agreement in any jurisdiction other than
that specified in this section. Each Party hereby waives any right that it may have to assert the doctrine
forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in
accordance with this section, and stipulates that the state and federal courts located in the County of
Riverside, State of California, shall have in personam jurisdiction and venue over each of them for the
purpose of litigating any dispute, controversy or proceeding arising out of this Agreement. Each Party
hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it
as contemplated by this Section 17.1 by means of registered or certified mail, return receipt requested,
postage prepaid, to its address for the giving of notices as set forth in this Agreement, or in the mamier set
forth in Section 17.7 of this Agreement pertaining to notice. Any final judgment rendered against a Party in
any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced
in other jurisdictions in any manner provided by law.
17.2 Legal Fees and Costs. If any Party to this Agreement institutes any action, suit,
counterclaim, appeal, arbitration or mediation for any relief against another Party, declaratory or otherwise
(collectively an "Action"), to enforce the terns hereof or to declare rights hereunder or with respect to any
inaccuracies or material omissions in connection with any of the covenants, representations or warranties
on the part of the other Party to this Agreement, then the Prevailing Party in such Action, whether by
arbitration or final judgment, shall be entitled to have and recover of and from the other Party all costs and
expenses of the Action, including reasonable attorneys' fees and costs (at the Prevailing Party's attorneys'
then-prevailing rates as increased from time to time by the giving of advanced written notice by such
counsel to such Party) incurred in bringing and prosecuting such Action and/or enforcing any judgment,
order, ruling or award (collectively, a "Decision") granted therein, all of which shall be deemed to have
accrued on the commencement of such Action and shall be paid whether or not such Action is prosecuted
to a Decision. Any Decision entered in such Action shall contain a specific provision providing for the
recovery of attorneys' fees and costs incurred in enforcing such Decision. A court or arbitrator shall fix the
amount of reasonable attorneys' fees and costs upon the request of either Party. Any judgment or order
entered in any final judgment shall contain a specific provision providing for the recovery of all costs and
expenses of suit, including reasonable attorneys' fees and expert fees and costs (collectively "Costs")
incurred in enforcing, perfecting and executing such judgment. For the purposes of this paragraph, Costs
shall include in addition to Costs incurred in prosecution or defense of the underlying action, reasonable
attorneys' fees, costs, expenses and expert fees and costs incurred in the following: (a) post judgment
motions and collection actions; (b) contempt proceedings; (c) garnishment, levy, debtor and third party
examinations; (d) discovery; (e) bankruptcy litigation; and (f) appeals of any order or judgment.
"Prevailing Party" within the meaning of this Section 17.2 includes a Party who agrees to dismiss an
Action in consideration for the other Party's payment of the amounts allegedly due or performance of the
covenants allegedly breached, or obtains substantially the relief sought by such Party.
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17.3 Modifications or Amendments. No amendment, change, modification or supplement to
this Agreement shall be valid and binding on any of the Parties unless it is represented in writing and
signed by each of the Parties hereto.
17.4 Applicable Law. This Agreement shall be governed by, interpreted under, construed and
enforced in accordance with the laws of the State of California, irrespective of California's choice-of-law
principles.
17.5 Further Assurances. Each of the Parties hereto shall execute and deliver at their own cost
and expense, any and all additional papers, documents, or instruments, and shall do any and all acts and
things reasonably necessary or appropriate in connection with the performance of their respective
obligations hereunder in order to carry out the intent and purposes of this Agreement.
17.6 Rights and Remedies are Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative,
and the exercise by either Party of one or more such rights or remedies shall not preclude the exercise by it,
at the same or different times, of any other rights or remedies for the same default or any other default by
the other Party.
17.7 Notices, Demands and Communications between the Parties. All notices, demands,
consents, requests and other communications required or permitted to be given under this Agreement shall
be in writing and shall be deemed conclusively to have been duly given (a) when hand delivered to the
other Party; (b) three (3) Business Days after such notice has been sent by United States mail via certified
mail, return receipt requested, postage prepaid, and addressed to the other Party as set forth below; (c) the
next Business Day after such notice has been deposited with a national overnight delivery service
reasonably approved by the Parties (Federal Express, United Parcel Service and U.S. Postal Service are
deemed approved by the Parties), postage prepaid, addressed to the Party to whom notice is being sent as
set forth below with next-business-day delivery guaranteed, provided that the sending Party receives a
confirmation of delivery from the delivery service provider; or (d) when received by the recipient Party
when sent by facsimile transmission or email at the number or email address set forth below (provided,
however, that notices given by facsimile or email shall not be effective unless either (i) a duplicate copy of
such notice is promptly sent by any method permitted under this Section 17.7 other than by facsimile or
email; or (ii) the receiving Party delivers a written confirmation of receipt for such notice either by
facsimile, email or any other method permitted under this Section. Any notice given by facsimile or email
shall be deemed received on the next business day if such notice is received after 5:00 p.m. (recipient's
time) or on a Saturday, Sunday or national holiday. Unless otherwise provided in writing, all notices
hereunder shall be addressed as follows:
If to the Agency: Community Redevelopment Agency
of the City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA, 92263
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Attention: Executive Director
With a copy to: Agency Counsel
c/o Office of the City Attorney
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA, 92263
Attention: City Attorney
If to the Developer: John Carroll
Geiger LLC
1888 Century Park East#450
Los Angeles, CA 90067
Any Party may by written notice to the other Party in the manner specified herein change the address to
which notices to such Party shall be delivered.
17.8 Force Maieure Delay.
17.8.1 The tern "Force Majeure Delay" shall mean the occurrence of anyone or more of
the following events (provided such event is beyond the control of a Party and beyond the control of such
Party's contractors and consultants and are not due to an act or omission of the Party claiming Force
Majeure Delay or any consultant, contractor or other Person for whom such Party may be contractually or
legally responsible) which directly, materially and adversely affect (a) the ability of the claiming Party to
meet its obligations under this Agreement, including the deadlines imposed by the Schedule of
Performance or (b) the ability of the Developer to Complete the Project, and which events (or the effect of
which events) could not have been avoided by due diligence and use of reasonable efforts by the Party
claiming Force Majeure Delay:
(a) An epidemic, blockade, rebellion, war, insurrection, strike, lock-out, riot, act
of sabotage, civil commotion, act of a public enemy, freight embargo, or lack of transportation;
(b) Unusually severe weather;
(c) Reasonably unforeseeable Site conditions including the presence of
Hazardous Materials;
(d) Fire, or earthquake, or other casualty, in each case, causing material physical
destruction or damage on the Site;
(e) Potential Default or Material Default by the other Party;
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(f) Issuance of a permanent injunction or writ of mandate in a lawsuit seeking to
restrain, enjoin, challenge or delay construction of the Project, which restricts the ability of a Party to
perform its material obligations hereunder, or a temporary restraining order ("TRO"), preliminary
injunction, or alternative writ which prevents the Agency, City or Developer from meeting the Schedule of
Performance. In the case of a TRO, preliminary injunction, or alternative writ, the deadlines in the
Schedule of Performance shall be extended to be coterminous with the TRO, injunction, or alternative writ,
but shall in no event extend for more than one (1)year after the Effective Date;
(g) The passage of a referendum or initiative that results in the inability of any
Party to perform its material obligations hereunder
(h) Any change in Governmental Regulation or adoption of any new
Govermnental Regulation which is materially inconsistent with Governmental Regulations in effect as of
the Effective Date (subject to the exclusion set forth in clause (ii) below.
17.8.2 The term "Force Majeure Delay" shall be limited to the matters listed above and
specifically excludes from its definition the following matters which might otherwise be considered Force
Maj eure Delay:
(a) Due to acts or omissions of the Developer, the suspension, tennination,
interruption, denial or failure to obtain or non-renewal of any Entitlement, permit, license, consent,
authorization or approval which is necessary for the development of the Project, except for any such matter
resulting from a lawsuit or referendum as described in subsections (fl or(g)above;
(b) Any change in a Government Regulation which was proposed or was
otherwise reasonably foreseeable at the Effective Date;
(c) Failure of the Developer to perform any obligation to be performed by the
Developer hereunder as the result of adverse changes in the financial condition of Developer;
(d) Failure of the Developer to provide any Performance Bond required by this
Agreement when due or to submit evidence of financing of the Project or to perform any obligation to be
performed by the Developer hereunder as the result of adverse changes in the market conditions affecting
the development, sale or lease of any part of the Site unless the Developer demonstrates to the satisfaction
of the Executive Director or designee in its sole discretion that (i) the Developer was unable to obtain such
Performance Bonds and/or financing despite making best efforts to do so, and (ii) such Performance Bonds
and financing are unavailable on terms which are commercially feasible because of generally applicable
economic conditions affecting the credit market which then exist and which are materially worse than the
conditions which prevail as of the Effective Date.
(e) Failure to submit documentation as and when required by Sections 2.2, 2.3 or
2_7, as applicable;
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(l) Failure to submit Design Documents for Project Improvements when
required pursuant to the Schedule of Performance;
(g) Failure to acquire, maintain and submit evidence of insurance policies as
required by Section 11;
(h) Failure to execute documents; and
(i) All other matters not caused by the other Party and not listed in subsections
(a) through (h) above of this Section 17.8.2.
17.8.3 If any Party (the "First Party") believes that an extension of time is due to it due to
Force Majeure Delay, it may apply to the other Party (the "Second Party") in writing within thirty (30)
calendar days from the date upon which the First Party becomes aware of Force Majeure Delay, describing
the event, its cause, when and how the First Party obtained knowledge, the date the event cormnenced and
the estimated delay resulting there from. The extension for Force Majeure Delay shall be granted or denied
in the Second Party's reasonable discretion. If the Second Party's decision with respect to such request is
disputed by the First Party, the matter shall be resolved in accordance with Section 17.1. An extension of
time for Force Majeure Delay shall be on a day for day basis for the period of the delay and shall
commence to run from the time of the commencement of the cause, if notice by the First Party is sent to the
Second Party in accordance with the provisions of this Section. If the First Party fails to notify the Second
Party in writing of its request for Force Majeure Delay within the thirty(30) calendar days specified above,
there shall be no extension for Force Majeure Delay.
17.9 Conflict of Interest. No appointed or elected official or employee of the Agency or City
shall have any personal interest, direct or indirect, in this Agreement nor shall any official or employee
participate in any decision relating to the Agreement which affects his interests or the interests of any
corporation, partnership, or association in which he is directly or indirectly interested. The Developer
warrants that it has not paid or given and will not pay or give any third person any money or other
consideration for obtaining this Agreement.
17.10 Non-liability of Agency Officials and Employees. No elected or appointed official,
representative, employee, agent, consultant, legal counsel or employee of the Agency or City shall be
personally liable to the Developer, or any successor in interest in the event of any default or breach by the
Agency for any arnount which may become due to the Developer or successor or on any obligation under
the terns of this Agreement.
17.11 Inspection of Books and Records. The Agency shall have the right at all reasonable times,
upon ten (10) days written notice, to inspect the books and records of the Developer pertaining to the Site
as pertinent to the purposes of this Agreement. The Developer shall also have the right at all reasonable
times to inspect the books and records of the Agency, upon ten (10) days written notice, pertaining to the
Site as pertinent to the purposes of this Agreement.
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17.12 Approvals.
(a) Except as otherwise expressly provided in this Agreement, approvals required of the
Agency or the Developer in this Agreement, including the Attachments hereto, shall not be unreasonably
withheld, conditioned or delayed.
(b) Any matter required by this Agreement to be submitted to the Agency shall be
deemed submitted upon the submittal to the Executive Director or designee.
(c) Except where the terms of this Agreement or State law expressly require the
approval of a matter or the taking of any action by the Agency, any matter to be approved by the Agency
shall be deemed approved, and any matter to be taken by the Agency shall be deemed taken, upon the
written approval by the Executive Director or designee.
17.13 Real Estate Commissions.
17.13.1 The Agency shall not be liable for any real estate commissions, brokerage
fees, or finders' fees which may arise from this Agreement. The Developer represents that it has engaged
no broker, agent, or finder in connection with this Agreement or the transactions identified herein. The
Developer hereby agrees to indemnify and hold the Agency and City and its elected and appointed
officials, employees, and representatives harmless from any losses and liabilities arising from or in any way
related to any claim by any broker, agent, or finder who may assert or claim any interest regarding this
Agreement or development of the Project or the transactions identified herein or the purchase or sale of
other property at the Site, including the Agency Parcel.
17.13.2 The Agency represents that it has engaged no broker, agent, or finder in
connection with this Agreement or the transactions identified herein.
17.14 Date and Delivery. of Agreement. Notwithstanding anything to the contrary contained in
this Agreement, the Parties intend that this Agreement shall be deemed effective, executed and delivered
for all purposes under this Agreement and for the calculation of any statutory time periods based on the
date an agreement between the Parties is effective, executed and/or delivered, as of the Effective Date.
17.15 Survival of Covenants. Representation and Warranties. The covenants,
representations and warranties specified in this Agreement shall survive any investigation made by any
Party hereto and the closing of the of the transactions contemplated hereby.
17.16 Construction and Interpretation of Agreement.
(a) The language in all parts of this Agreement shall in all cases be construed simply, as
a whole and in accordance with its fair meaning and not strictly for or against any Party. The Parties hereto
acknowledge and agree that this Agreement has been prepared jointly by the Parties and has been the
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subject of arm's length and careful negotiation over a considerable period of time, that each Party has been
given the opportunity to independently review this Agreement with legal counsel, and that each Party has
the requisite experience and sophistication to understand, interpret, and agree to the particular language of
the provisions hereof. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation
of this Agreement, this Agreement shall not be interpreted or construed against the Party preparing it;
instead other rules of interpretation and construction shall be utilized. The provisions of California Civil
Codle Section 1654 are specifically waived by each Party hereto.
(b) If any term or provision of this Agreement, the deletion of which would not
adversely affect the receipt of any material benefit by any Party hereunder, shall be held by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall not be affected
thereby and each other term and provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law. It is the intention of the Parties hereto that in lieu of each clause or provision of
this Agreement that is illegal, invalid, or unenforceable, there be added as a part of this Agreement an
enforceable clause or provision as similar in terns to such illegal, invalid, or unenforceable clause or
provision as may be possible.
(c) The inclusion in Section 1.1 of this Agreement of any matters or facts shall be
conclusive proof of the truthfulness thereof.
(d) The captions of the sections and subsections herein are inserted solely for
convenience and under no circumstances are they or any of them to be treated or construed as part of this
instrument.
(e) References in this instrument and in the Attachments hereto to "this Agreement"
mean, refer to and include this instrument as well as any riders, exhibits, addenda and Attachments hereto
(which are hereby incorporated herein by this reference) and all other documents expressly incorporated by
reference in this instrument. Any references to any covenant, conditions, obligation and/or undertaking
"herein," "hereunder," or "pursuant hereto") (or language of like import) shall mean, refer to and include
the covenants, obligations and undertakings existing pursuant to this instrument and any riders, exhibits,
addenda and Attachments or other documents affixed to or expressly incorporated by reference in this
instrument.
(f) As used in this Agreement and as the context may require, the singular includes the
plural and vice versa and the masculine gender includes the feminine and vice versa.
(g) As used in this Agreement the words "include" and "including" mean respectively
"include, without limitation" and "including, without limitation".
17.17 Time of Essence. Time is of the essence with respect to all provisions of this Agreement in
which a definite time for perfonnance is specified; provided, however, that the foregoing shall not be
construed to limit or deprive a Party of the benefits of any grace period provided for in this Agreement.
November 10,2005
67
17.18 Fees and Other Expenses. Except as otherwise provided herein, each of the Parties hereto
shall pay its own fees and expenses, including attorneys' fees and costs, in connection with negotiation and
preparation of this Agreement.
17.19 No Partnership. Nothing contained in this Agreement shall be deemed or construed to
create a partnership,joint venture or any other relationship between the Parties hereto other than purchaser
and seller and landlord and tenant according to the provisions contained herein, or cause the Agency to be
responsible in any way for the debts or obligations of the Developer.
17.20 Compliance with Law. The Developer agrees to comply with all the requirements now in
force, or which may thereafter be in force, of all municipal, county, state and federal authorities, pertaining
to the Site and the Project hmprovements as well as operations conducted thereon. The judgment of any
court of competent jurisdiction or the admission of the Developer in any action or proceeding against it,
whether the Agency is a party thereto or not, that the Developer has violated any such ordinance or statute
in the use of the Site and/or the Project Improvements shall be conclusive of that fact as between the
Agency and the Developer.
17.21 Binding Effect. This Agreement and the terms, provisions, promises, covenants and
conditions hereof shall be binding upon and shall inure to the benefit of the Parties hereto and their
respective heirs, legal representatives, successors and assigns.
17.22 No Third Party Beneficiaries. This Agreement has been made and entered into solely for
the benefit of the Parties to this Agreement and their respective successors and permitted assigns. Nothing
in this Agreement is intended to confer any rights or remedies under or by reason of this Agreement on any
persons other than the Parties to it and their respective successors and permitted assigns. Nothing in this
Agreement is intended to relieve or discharge the obligation or liability of any third persons to any Parties
to this Agreement.
17.23 Counterparts. This Agreement may be executed in two or more separate counterparts,
each of which, when so executed, shall be deemed to be an original. Such counterparts shall, together,
constitute and shall be one and the same instrument. This Agreement shall not be effective until the
execution and delivery by the Parties of at least one set of counterparts. The Parties agree to recognize
execution of this Agreement by facsimile signatures; provided, however, that such execution by facsimile
shall not be effective unless a manually executed copy of the signature page is promptly sent by United
States, postage prepaid, and such manually signed page is actually received by the other Party within ten
(10) days of its execution. The Parties hereby authorize each other to detach and combine original signature
pages and consolidate them into a single identical original. Any one of such completely executed
counterparts shall be sufficient proof of this Agreement.
17.24 Authority of Signatories to Agreement. Each person executing this Agreement represents
and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement
on behalf of the Parties for which execution is made. Each Party represents and warrants to the other that
the execution of this Agreement and the performance of such Party's obligations hereunder have been duly
Nave.ber 10,2005
68
authorized and that the agreement is a valid and legal agreement binding on such Party and enforceable in
accordance with its terms.
17.25 Entire Agreement, Waivers and Amendments.
(a) This Agreement is executed in three (3) duplicate originals, each of which is deemed
to be an original.
(b) This Agreement, including the Attachments hereto, together with any related
documents referred to herein constitute the entire agreement between or among the Parties with respect to
the subject matter hereof. This Agreement supersedes and replaces any and all prior agreements, proposed
agreements, negotiations and communications, oral or written, and contains the entire agreement between
the Parties as to the subject matter hereof and any and all prior agreements, understandings or
representations are hereby terminated and canceled in their entirety. Each Party hereby acknowledges that
no other Party hereto, nor its agents or attorneys, have made any promises, representations or warranties
whatsoever, expressed or implied, not contained herein, to induce such Party to execute this Agreement,
and each Party acknowledges that it has not executed this Agreement in reliance on any such promise,
representation or warranty not contained herein.
(c) No waiver of any provision or consent to any action under this Agreement shall
constitute a waiver of any other provision or consent to any other action, whether or not similar. No waiver
or consent shall constitute a continuing waiver or consent or commit a Party to provide a waiver in the
future except to the extent specifically set forth in writing. Any waiver given by a Party shall be null and
void if the Party requesting such waiver has not provided a full and complete disclosure of all material facts
relevant to the waiver requested. All waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of the Agency or the Developer and all amendments hereto must be in
writing and signed by the appropriate authorities of the Agency and the Developer. Any amendment to the
Agreement shall require the approval of the Agency.
17.26 Approval Procedures. This Agreement, when executed by the Developer and delivered to
the Agency, will then be scheduled for a public hearing before the Agency's Board of Directors This
Agreement must be authorized, executed and delivered by the Agency within sixty (60) days after date of
signature by the Developer or the Developer shall have the authority to withdraw its offer to enter into this
Agreement upon written notice to the Agency. The Effective Date of this Agreement shall be the date when
this Agreement has been executed by the Agency and delivered to the Developer, which shall be the date
first set forth above.
Novembe,10,2005
69
IN WITNESS WHEREOF, the Agency and the Developer have signed this Agreement as
of the date first set forth above.
AGENCY:
Coimnunity Redevelopment Agency
of the City of Palm Springs
Dated: By:
David Ready, Executive Director
ATTEST:
By:
Assistant Secretary
APPROVED AS TO FORM
Office of Agency Counsel
By:
Agency Counsel
DEVELOPER:
Geiger, LLC, a California Limited Liability Company,
Dated: By:
Title:
By:
Title:
N.,e..be,10,2005
70
DRAFT
EXHIBIT NO. 1A
2005 GEIGER DDA
MAP OF THE SHOPPING CENTER
[See Next Page]
EXHIBIT NO. 1A
2005 GEIGER DDA
Page 1 of 2
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DRAFT
EXHIBIT NO. 1B
2005 GEIGER DDA
LEGAL DESCRIPTION
OF THE AGENCY PARCEL
PARCEL A:
THAT PORTION OF PARCEL 2 OF PARCEL MAP NO. 24604 ON FILE IN BOOK 159
OF PARCEL MAPS, PAGES 66 AND 67, LYING SOUTHERLY OF THE WESTERLY
PROLONGATION OF THE NORTHERLY LINE OF THE REMAINDER PARCEL AS
SHOWN ON PARCEL MAP NO. 18787 ON FILE IN BOOK 135 OF PARCEL MAPS,
PAGES 53 AND 54, BOTH OF OFFICIAL RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA.
PARCEL B:
PARCEL 1 OF PARCEL MAP 18787 IN THE CITY OF PALM SPRINGS, COUNTY OF
RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 135,
PAGES 53 AND 54 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
A CERTIFICATE OF CORRECTION BEING RECORDED FEBRUARY 6, 1987 AS
INSTRUMENT NO. 34738 OFFICIAL RECORDS.
PARCEL C:
PARCEL 2 OF PARCEL MAP 18787 IN THE CITY OF PALM SPRINGS, COUNTY OF
RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 135,
PAGES 53 AND 54 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
A CERTIFICATE OF CORRECTION BEING RECORDED FEBRUARY 6, 1987 AS
INSTRUMENT NO. 34738 OFFICIAL RECORDS.
LEGAL DESCRIPTION
OF THE DEVELOPER PARCEL
[To Be Inserted]
EXHIBIT NO 1B
2005 GEIGER DDA
Page I of I
DRAFT
EXHIBIT NO. 1C
2005 GEIGER DDA
SUMMARY OF APPRAISAL OF AGENCY PARCEL
[See Attached Lidgard Letter dated October 3, 2005]
EXHIBIT NO. 1C
2005 GEIGER DDA
Page I of 3
DRAFT
i
i
October 3, 2005
City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, California 92263
Attention: Curt Watts
Redevelopment Administrator
Subject: Update Land Value Study
Former Landfill Site
APN:677-420-032,033, 034
Palm Springs, California
Long Beao 1(�ice:
3353 Linde Aaenue
In accordance with your request and authorization, I have personally Lee)- 00
Long Beach, A
completed an update appraisal study pertaining to the above- 90807-4so3
referenced property. The subject property was originally appraised by
the undersigned as of June 6, 2003.
The subject property is located on the north side of Ramon Road,
extending between Gene Autry Trail and San Luis Rey Drive, within the Orange County flee
City of Palm Springs. The southerly portion of the site, situated along 2808E.xatella Venue
Ramon Road and comprising 13.75± acres, is vested with the Palm suite 107
Orange,CA
Springs Redevelopment Agency. The northerly portion, containing 92867-5246
23.83± acres of land area, is under private ownership (Endure
Investments).
The entire property is zoned M-1-P (planned research and development
park), which zone allows for a wide variety of light manufacturing uses, Telephone:
along with numerous commercial oriented developments. The highest (5621988-29 6
and best use of the site, considering the relatively prominent signalized (114)633 8 1
corner location, along with land plottage and vehicular accessibility, is
rocscommercial retail development consisting of large anchor tenancies. (714)6 3
(7141633- 449
The subject parcel was formerly utilized as a public landfill, and has
undergone extensive environmental remediation in recent years. The
remediation project included the excavation,filtering, and recompaction
of soil material along the peripheral boundaries of the site. The landfill
material has been consolidated toward the center portion of the parcel
creating a"debris cell'. Future developability of the site is limited to the
perimeter boundaries.
LIDGMM AND ASSOCYATES Real Estate Appraisal d Consultation
.mrncnnx�rv.n
EXHIBIT NO. 1 C
2005 GEIGER DDA
Page 2 of 3
DRAFT
{{r
II ention: Curt Watts �r x
Redevelopment Administrator � ' 4
October 3,2005
Page 2 �s
Additionally, the subject property is located within the i `3 ea o {e Palm
Springs International Airport land use plan. Developabili Ssit Ject to
the Riverside County Airport Land Use Compatibility Plan:
These conditions have been considered and analyzed in the subject Ian value
analysis. The subject property has been appraised herein considering a r adily
developable condition adequate to accommodate the proposed sub net
shopping center development. Reference the accompanying appraisal report r
a complete description of the subject property.
The purpose of this appraisal report is to express an estimate of market value of\
the unencumbered fee simple interest in the combined subject parent
ownerships as a single developable entity, in as-is condition. After considering the
various factors which influence land value, the market value as of September 30,
2005 is allocated between the individual ownerships,as follows:
Market value of Agency-owned parcels comprising 1
13.75 acres(APN: 677-420-032, 033): $ 4,480,000.
Market value of Endure ownership comprising
23.83 acres(APN: 677-420-034): 7,765,000, I
Market value of combined ownerships comprising
37.58 acres(APN: 677-420-032, 033. 034): $12,245,000.
The foregoing values are subject to (1) the assumptions and limiting conditions
set forth in the Preface Section, and (2) the valuation study set forth in the
Valuation Analysis Section. No portion of this report shall be amended or deleted.
This appraisal report is submitted in triplicate; I have retained a file copy. If you
require any additional information from our file, please do not hesitate to contact
the undersigned.
Very truly yours, /
LIDGARD AN OCIATES
l
colt A. L dgar M
Certified General Real Estate Appraiser
California Certification No.AG 004014
Renewal oate: March 13,2006
SALsp
LIDGARD AND ASSOCIATES
INCORPORATED Real Estate Appraisalodd Consultation
EXHIBIT NO. 1C
2005 GEIGER DDA
Page 3 of 3
DRAFT
EXHIBIT NO. I
2005 GEIGER DDA
SUMMARY OF PROJECT REMEDIATION COSTS
[See Attached 2 Pages]
EXHIBIT NO. 1D
2005 GEIGER DDA
Page 1 of 3
DRAFT
PAI.EIi-^SPRINGS PROJECT CONSTRUCTION VALUE
Relocating Soil and Debris Value(See Attached Scope of Work)
Prewater 55,000
Mablizalion 95,000
Sao&Debris Excavation Compaction(666 000cy)
First Move 665,000Cy 22601000
Move Stockpiled Sal&Debris 450,00Dcy 1,630,000
Cleen Soil Exoavadon&Compaction(420 000py)
First Move 420,000cy 1,260,000
Move Stockpiled Sail&Debris 400 00oy 1.200.000
Subtotal(Relocating and Compacting Soil and Debris Value - 6,400,000
Miscellaneous Items(Actual Costs Attached) 3.651,463
i
Putura ProJectod Costs F
Methane Collee0on System 350.000
PILL Insurance 100,000
Post Closure Landfill Monitoring,TestIng,Maintenance 250,000
SUBTOTAL COST 10,751,453 _
Developer's Ovrehead(Supervision(5%) 537,573
Developer's Risk(16%) 1,935,262
i
Total 13,224.287
}
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EXHIBIT NO. ID
2005 GEIGER DDA
Page 2 of 3
DRAFT
PA CEULA NGS PROJECT -=
MI9CEL PFMM S R MS
20,
I AS OP 3lPTEM9ER 26,21105
- ST11"
PaaiU BUI Unpaid TOM MwL"
NOa Eguloment, 38Q73210- 366,732,10
Ennronmenial ConsullaM Comps» 560,767AB 27226.64 5579E_, E.'12
Conhactetl P�ecl Mana9ertient 246;Bil2.00 248.832.00
Cnnl En ltnaa SSurveY 150,118A2 14,8W.08 154, 511
Ge090lls CcnaultenIS 170.902.51 %3S8.05 186,258.58
LeaaI(EnvhonmehtaI tela[Ptll 76.887�00 4i.74 80,409,74
Healm 65afa Tratm 12i180,00 12
i-4a.00
N eve Doc PreovPWn 20.04.60 ZD,534.80
LendepoeArdll, tod lsted to Cd11 78.08929 16,08929
Arch lteck{Reletedto ReMdlatlon 311300.P6 ,__31.388,2e
AmtMedt6 Plants Lg IPaan 2000.00 4.0w.00
Air Ctw9ant - __ 171� 9,710.00 1_`16,799.77
CONSTRUCTION REL�.TEO
NOxE uilp Relm(t 43697.00 43W.O
NOa Equip-Rei A 25.332,03 2S 332.03 _
Panty and Partabk Fac0i6ea 2a,86320 _ A,246,79 33090.09
Envimnmattal NodgEL dA91MICetpn 13,500.50 13,600.00
NOa EOuiO.Supplies 8.969.69 _ 9.964.86
OtGce Traler -- a,741.94 120.42 B,Bt .3B
Patabla TaBefs 6.911.41 999.B8 ]¢(f1.O8
Trar6a Plale Rental 7,184•W 437.60 7,70210
SouSwm C,alifomW Tank 1,04548 1,045.18
Mobile OM Supplies 190.42 120.42 160,695.05
Ui1LRIE8AVASlE DISPOSAL
ff.or Water Apancy 119,145.81 119,145;81
COVPDechic i,51lA6 _ 1,571A8
Vm 3.144.01 3,144.01
PaImS rin sQlspo6al Service _ 1,785.09 138.06 7'921.15 I
EOlsan 1L00.06 1,100.90 126,8mm
QQ_VERNNENT AGENGIES _
OfTatic S�bsfance 96,090.91 _ -24,29255 121783,46
SCAQMO 399.05 309.95
Riverside COUNY ort 2,370.00 _ 2,37000_
SlVRC6 1,18,5.c0 _ 1,1a5.00 125,133.R
MUY Epsreen-Purdiase _ 100� 00,000.00 1_000,060:00
1 _ -
EPsleen-Inlemst _ 32,187.50 1a2,151M - '�
IMereii•loan mst- _ 3E3,000.00 3aa,000.00
Urea Purchxefor NOZ EVUIp,. a"5.07 3,946.aT
Onetl Medical_GroUp 2690.76 2- 9 -75
e.O 1na111AQM 2.055.78 11015.08
SOaN Coat AQMO _ - 1,075.08 1,015.Oe (l
6 ,Inc 678.79 576.71
Saul Oraene I 1,400.00 7,400.00
Tha Press Enl se 403.00 403.00 pFt
Fo 347.89 -- 347 83.99 *L 7Z SB
[Fog
L 2560 69 1.09066a.61 3. 53.30
V
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EXHIBIT NO. 1D
2005 GEIGER DDA
Page 3 of 3
DRAFT
EXHIBIT NO. 2
2005 GEIGER DDA
GLOSSARY OF DEFINED TERMS
For purposes of this Agreement, the following capitalized terms shall have the following
meanings:
"Affiliate" shall mean (1) any Person directly or indirectly Controlling, Controlled by or
under common Control with another Person; (2) any Person owning or Controlling fifty-one
percent (51 %) or more of the outstanding voting securities of such other Person; and (3) if that
other Person is an officer, director, member or partner, any company for which such Person acts
in any such capacity.
"Agency" shall have the meaning set forth in Section 1.4.1.
"Agency Closing Conditions" shall have the meaning set forth in Section 7.3.
"Agency Parcel" shall have the meaning set forth in Section 1.1.1.
"Agency Title Policy" shall mean any title insurance policy obtained by the Agency from
the Title Company in co>mection with this Agreement.
"ALTA " shall have the meaning set forth in Section 6.3.
"Approved Project Plans" shall have the meaning set forth in Section 8.5.11.
"Assignee" shall mean any Person to whom or to which the Developer assigns its
interests in this Agreement the Developer Parcel, the Project improvements thereon or any
portion thereof.
"Business Day(s)" shall mean any day on which Palm Springs City Hall is open for business and steal
"CEQA" shall mean the California Environmental Quality Act and implementing
regulations and guidelines, contained in Cal. Public Resources Code Section 21000 et seq., and
Cal. Code of Regulations, title 14, Section 15000 et seq.
"Certificate of Compliance" shall have the meaning set forth in Section 9.
"Change in Ownership" shall be synonymous with the terns "Transfer of Control."
"City" shall mean the City of Palm Springs.
"City Code" shall mean the M>,micipal Code for the City of Palm Springs, California, as
the same may be amended from time to time.
EXHIBIT NO.2
2005 GEIGER DDA
Page 1 of 10
DRAFT
"City flail" shall mean the seat of government for the City of Palm Springs and the
C'onnminity Redevelopment Agency of the City of Palm Springs, located at 3200 E. Tahquitz
Canyon Way, Palm Springs, California 92262.
"Claim" or "Claims" shall mean any and all claims, actions, causes of action, demands,
orders, or other means of seeking or recovering losses, damages, liabilities, costs, expenses
(including attorneys' fees, fees of expert witnesses, and consultants' and court and litigation
costs), costs and expenses attributable to compliance with judicial and regulatory orders and
requirements, fines, penalties, liens, taxes, or any type of compensation whatsoever, direct or
indirect, known or unknown, foreseen or unforeseen.
"Closing", "Close of Escrow" or "Escrow Closing" shall mean the point in time when
the Agency conveys fee title in the Property to the Developer, which shall be within five (5)
working days after Developer and Agency approval of the performance of or occurrence of the
Closing Conditions.
"Closing Conditions" shall mean the Developer Closing Conditions and the Agency
Closing Conditions.
"Closing Date" shall mean the meaning set forth in Section 7.1.
"CLTA Policy" shall have the meaning set forth in Section 6.2.
"Common Area Improvements" shall mean all amenities of the Project to be available
for and used in common by the owners and/or lessees of all Units on the site.
"Common Areas" shall mean the Common Area Improvements and the land upon which
such improvements are located.
"Complete" and "Completion" shall mean, with respect to the Project, the point in time
when all of the following shall have occurred: (1) to the extent a certificate of occupancy is
required with respect to construction of the Project hmprovements required under this
Agreement, issuance of a certificate of occupancy or a temporary Certificate of Occupancy by
the City; (2) recordation of a Notice of Completion by the Developer, its Assignee or such
Party's contractor; (3) certification by the Project Architect that the Project Improvements (with
the exception of minor "punch list" items) have been completed in a good and workmanlike
manner and substantially in accordance with the approved plans and specifications; (4) any
mechanic's liens that have been recorded or stop notices that have been delivered have been
paid, settled or otherwise extinguished, discharged, released, waived, bonded around or insured
against; and (5) final inspection and acceptance by City Engineer of the Public Improvements.
"Concept Plan and Design Review" shall mean the City's concept plan and design
review approvals as required by the City Code, which shall be part of the Entitlements.
"Conditions Precedent" or "Condition Precedent" shall mean all conditions precedent
to the Agency's issuance of a Certificate of Compliance, as set forth in Section 9.6.
EXHIBIT NO.2
2005 GEIGER DDA
Page 2 of 10
DRAFT
"Consumer Price Index" shall mean the Consumer Price Index - all Urban Consumers,
Riverside-San Bernardino County, published by the Bureau of Labor Statistics, or such
comparable index as may be reasonably acceptable to the City.
"Control" "Controlled" or "Controlling", shall mean the power to direct the
management. It shall be a presumption that control with respect to a corporation or limited
Partnership is the right to exercise, directly or indirectly, more than fifty percent (50%) of the
voting rights attributable to the controlled corporation or limited Partnership, and, with respect to
any individual, partnership, trust, other entity or association, control is the possession, indirectly
or directly, of the power to direct or cause the direction of the management or policies of the
controlled entity.
"Defaulting Party" shall mean a Party to this Agreement who is either in Potential
Default or in Material Default.
"Design Documents" shall mean documents, plans and specifications at each stage of
development (schematics, design development and construction documents, or if design build,
schematic and construction documents) for the Project Improvements which: (a) shall describe
the proposed use and include plans and renderings showing in reasonable detail the proposed
size, land coverage, floor area, gross square footage, shape, height, bulk, massing, location,
exterior material, exterior color scheme and elevation of such Project Improvements; (b) shall
include (i) a pedestrian and vehicular circulation and traffic plan showing all ingress and egress
to public streets or roads and including a statement of impact; (ii) utilities and service
connections plan; (iii) a landscape plan; (iv) a signage plan; (v) engineering, mechanical and
electrical plans and documents; and (vi) a grading, drainage and utility plan; and (c) shall be
prepared and stamped approved by an architect and/or engineer licensed to practice in the State
of California.
"Developer" shall have the meaning set forth in Section 1.4.2.
"Developer's Closing Conditions" shall have the meaning set forth in Section 7.2.
"Developer Parcel" shall have the meaning set forth in Section 1.1.1.
"Developer's Title Endorsements" shall have the meaning set forth in Section 6.3.
"Developer's Title Policy" shall have the meaning set forth in Section 6.3.
"Development Costs" shall have the meaning set forth in Section S.1.3.
"Development Services Department" means collectively the City's Planning Services
Department, Building Services Department, and the Public Works Department or such
department of the City with responsibility for the review, approval, or issuance of an
Entitlement.
EXHIBIT NO.2
2005 GEIGER DDA
Page 3 of 10
DRAFT
"Effective Date" shall have the meaning set forth in Section 1.1.2.
"Entitlements" shall have the meaning set forth in Section 8.3.1.
"Environmental Agency" shall mean the United States Environmental Protection
Agency; the California Environmental Protection Agency and all of its sub-entities, including
any Regional Water Quality Control Board, the State Water Resources Control Board, the
Department of Toxic Substances Control, the South Coast Air Quality Management District, and
the California Air Resources Board; the City; any Fire Department or Health Department with
jurisdiction over the Developer Property; and/or any other federal, state, regional or local
governmental agency or entity that has or asserts jurisdiction over Hazardous Substance Releases
or the presence, use, storage, transfer, manufacture, licensing, reporting, permitting, analysis,
disposal or treatment of Hazardous Materials in, on, under, about, or affecting the Project.
"Environmental Laws" shall mean any federal, state, regional or local laws, ordinances,
rules, regulations, requirements, orders, directives, guidelines, or pen-nit conditions, in existence
as of the Effective Date or as later enacted, promulgated, issued, modified or adopted, regulating
or relating to Hazardous Materials, and all applicable judicial, administrative and regulatory
decrees, judgments and orders and common law, including those relating to industrial hygiene,
public safety, human health, or protection of the environment, or the reporting, licensing,
permitting, use, presence, transfer, treatment, analysis, generation, manufacture, storage,
discharge, Release, disposal, transportation, Investigation or Remediation of Hazardous
Materials. Environmental Laws shall include the Comprehensive Enviromnental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.)
("CERCLA"); the Resource Conservation and Recovery Act, as amended, (42 U.S. C. Section
6901 et seq.) ("RCRA"); the federal Water Pollution Control Act, as amended, 33 U.S.C.
Section 1251 et seq.); the Toxic Substances Control Act, as amended, (15 U.S.C. Section 2601 et
seq.); the Hazardous Substances Account Act (Chapter 6.8 of the California Health and Safety
Code Section 25300 et seq.); Chapter 6.5 commencing with Section 25100 (Hazardous Waste
Control) and Chapter 6.7 commencing with Section 25280 (Underground Storage of Hazardous
Substances) of the California Health and Safety Code; and the California Water Code, Sections
13000 et seq.
"Escrow" shall have the meaning set forth in Section 4.4.
"Escrow Holder" shall mean Title Insurance Company.
"Exclusive Agreement to Negotiate" or "EAN" shall mean that certain Exclusive
Agreement to Negotiate dated March 17, 2004 by and between the Agency and Geiger LLC, a
California Limited Liability Company.
"Executive Director" shall mean the Executive Director of the Agency or the designee of
the Executive Director.
"Fair Market Value" shall have the meaning set forth in Section 14.2.3.
EXHIBIT NO.2
2005 GEIGER DDA
Page 4 of 10
DRAFT
"Final Map" or "Final Maps" shall mean a final tract map or final tract maps approved
by the City for the Site in accordance with the Subdivision Map Act and the City Code.
"Final Plans" shall have the meaning set forth in Section 8.5.6.
"Force Majeure Delay" shall have the meaning set forth in Section 17.8.
"General Plan" shall mean the most current general plan for the City of Palm Springs.
"Governmental Authority" shall mean any and all federal, state, county, municipal and
local governmental and quasi-governmental bodies and authorities (including the United States
of America, the State of California and any political subdivision, public corporation, district,
joint powers authority or other political or public entity) or departments thereof having or
exercising jurisdiction over the Parties, the Project, or the Developer Parcel, as the context
indicates.
"Governmental Requirements" shall mean all laws, statutes, codes, ordinances, rules,
regulations, standards, guidelines and other requirements issued by any Governmental Authority
having jurisdiction over the Parties, the Project, or the Developer Parcel, or any component
thereof.
"Grant Deed" shall mean the Grant deed to be executed and delivered by the Agency at
the Closing to convey title to the Property to the Developer. The Grant Deed shall be in
substantially the form attached hereto as Exhibit No. 4, acknowledged and in recordable form.
"Hazardous Materials" shall mean and include the following:
(a) "Hazardous Substance", "Hazardous Material", "Hazardous Waste",
or "Toxic Substance" under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. subsection 9601, et sea., the Hazardous Materials
Transportation Act, 49 U.S.C. subsection 5101, et sea., or the Resource Conservation and
Recovery Act, 42 U.S.C. subsection 6901, et seq.;
(b) An "Extremely Hazardous Waste", a "Hazardous Waste", or a
"Restricted Hazardous Waste", under subsections 25115, 25117, or 25122.7 of the California
Health and Safety Code, or is listed or identified pursuant to subsection 25140 or 44321 of the
California Health and Safety Code;
(c) "Hazardous Material', "Hazardous Substance", "Hazardous Waste",
"Toxic Air Contaminant", or "Medical Waste" under subsections 25281, 25316, 25501,
25501.1, 117690 or 39655 of the California Health and Safety Code;
(d) "Oil' or a "Hazardous Substance" listed or identified pursuant to Section
31.1 of the Federal Water Pollution Control Act, 33 U.S.C. Section 1321, as well as any other
hydro carbonic substance or by-product;
EXHIBIT NO.2
2005 GEIGER DDA
Page 5 of 10
DRAFT
(e) Listed or defined as a "Hazardous Waste", "Extremely Hazardous
Waste", or an "Acutely Hazardous Waste" pursuant to Chapter 11 of Title 22 of the California
Code of Regulations;
(0 Listed by the State of California as a chemical known by the State to cause
cancer or reproductive toxicity pursuant to Section 25249.9(8) of the California Health and
Safety Code;
(g) A material which due to its characteristics or interaction with one or more
other substances, chemical compounds, or mixtures damages or threatens to damage, health,
safety, or the environment, or is required by any law or public agency to be remediated,
including remediation which such law or public agency requires in order for the property to be
put to any lawful purpose;
(h) Any material whose presence would require remediation pursuant to the
guidelines set forth in the State of California Leaking Underground Fuel Tank Field Manual,
whether or not the presence of such material resulted from a leaking underground fuel tank;
(i) Pesticides regulated under the Feral Insecticide, Fungicide and
R'.odenticide Act, 7 U.S.C. subsection 136 et sea.;
0) Asbestos, PCBs and other substances regulated under the Toxic
Substances Control Act, 15 U.S.C. subsection 2601 et sea.;
(k) Any radioactive material including any "source material', "special nuclear
material', "by-product material', "low-level wastes", "high-level radioactive waste", "spent
nuclear fuel' or "transuranic waste", and any other radioactive materials or radioactive wastes,
however produced, regulated under the Atomic Energy Act, 42 U.S.C. subsection 2011 et sea.,
the Nuclear Waste Policy Act, 42 U.S.C. subsection 10101 et seq., or pursuant to the California
Radiation Control Law, California Health and Safety Code subsection 114960 et seq.;
(1) Regulated under the Occupational Safety and Health Act, 29 U.S.C.
subsection 65let seq., or the California Occupational Safety and Health Act, California Labor
Code subsection 6300 et seq.; and/or
(in) Regulated under the Clean Air Act, 42 U.S. C. subsection 7401 et Leg. or
pursuant to Division 26 of the California Health and Safety Code.
"Indemnified Parties" shall have the meaning set forth in Section 10.1.
"Initial Deposit" shall have the meaning set forth in Section 4.2.
"Injured Party" shall mean the Party to this Agreement other than the Party which is in
Potential Default or in Material Default.
EXHIBIT NO.2
2005 GEIGER DDA
Page 6 of 10
DRAFT
"Institutional Lender" shall mean a nationally recognized bank, savings and loan
association, investment bank, or other institutional lender which has a net worth of One Billion
Dollar ($1,000,000,000) or more. The participation or securitization of a loan by an Institutional
Lender shall not give rise to any requirement that each lender participating in such participation
or securitization itself be an Institutional Lender, so long as (a) at the inception of the loan, the
originating and agent lender is an Institutional Lender, and (b) at the time of any subsequent
assignment of the loan, the assignee and agent lender is an Institutional Lender.
"Interest Payment" shall have the meaning set forth in Section 7.1.
"Investigation(s)" shall mean any observation, inquiry, examination, sampling,
monitoring, analysis, exploration, research, inspection, canvassing, questioning, and/or surveying
of or concerning the Property or any adjacent or affected properties, including the air, soil,
surface water, and groundwater, and the surrounding population or properties, or any of them, to
characterize or evaluate the nature, extent or impact of Hazardous Materials
"Lot(s)" shall mean the subdivided portions of the Site that are conveyed with a Parcel as
reflected in an approved and recorded Final Map, that are conveyed and intended for sale or
lease.
"Material Default" shall mean the state a Party to this Agreement is in after proper
notice is provided of a Potential Default and the appropriate cure period, if any, has lapsed, all as
provided in this Agreement
"Memorandum of DDA" shall mean a Memorandum of this Agreement substantially in
the fonn and substance of the memorandum attached to the Agreement as Exhibit No. 3.
"Mortgage" shall mean any indenture of mortgage or deed of trust, bond, grant of taxable
or tax exempt funds from a governmental agency or other security interest and the documents
governing a sale-leaseback transaction, together with all loan documents related thereto.
"Mortgagee" shall mean any mortgagee, beneficiary under any deed of trust, trustee of
bonds, goverrunental agency which is a grantor of funds, and, with respect to any Parcel which is
the subject of a sale-leaseback transaction, the Person acquiring fee title.
"Mortgagor" shall mean the mortgagor or trustor under a Mortgage (or lessee, in the
case of a sale-leaseback transaction).
"Official Records" shall mean the records of the office of the County Recorder for
Riverside County, California.
"Opening of Escrow" shall have the meaning set forth in Section 4.4.
"Ownership Transfer" shall mean the transfer, sale, assignment, ground lease, gift,
hypothecation, mortgage, pledge or encumbrance, or other similar conveyance of the Developer's
interests in this Agreement, the Developer Parcel or the Project Improvements thereon, or any
EXHIBIT NO.2
2005 GEIGER DDA
Page 7 of 10
DRAFT
portion thereof or interest therein, whether voluntary, involuntary, by operation of law or
otherwise, or any agreement to do so; the granting of any Mortgage and/or the execution of any
installment land sale contract or similar instrument affecting all or a portion of the Developer
Parcel or the Project Improvements thereon; and shall also include a Transfer of Control of the
Developer, or any conversion of the Developer to an entity form other than that of the Developer
at the time of execution of this Agreement.
"Ownership Transferee" shall mean any Person to which an Ownership Transfer is
made, including any Mortgagee or Permitted Mortgagee.
"Party" shall mean either of the Agency or the Developer, individually.
"Parties" shall mean Agency and the Developer, collectively.
"Performance Bonds" shall mean bonds issued by a surety company admitted in the
State of California and regulated by the State of California Department of Insurance, acceptable
to the Executive Director and Agency Legal Counsel in their sole discretion, in which the City is
a named obligee. The Performance Bonds shall guarantee payment for and faithful perfonnance
and completion (within the respective times provided in this Agreement) of the Project
hmprovements, in accordance with drawings or plans, as appropriate, that specifically describe
the work to be performed in sufficient detail for the issuance of such Performance Bonds.
"Permitted Exceptions" shall have the meaning set forth in Section 6.2.
"Permitted Mortgage" shall mean any indenture of mortgage or deed of trust, bonds,
grant of taxable or tax-exempt funds from a governmental agency or other conveyance of a
security interest in a Parcel(s), to a Permitted Mortgagee or the conveyance of such Parcel to the
Permitted Mortgagee or its assignee or purchaser in connection with a foreclosure or a deed in
lieu of foreclosure, which satisfies all of the criteria set forth in Section 2.7.2 and 2.7.3 of this
Agreement.
"Permitted Mortgagee" shall mean a Mortgagee meeting the criteria set forth in
Sections 2.7.2 and accordingly entitled to the Pennitted Mortgagee protections provided by this
Agreement.
"Permitted Transfer" shall mean any Ownership Transfer that is permitted or authorized
by Sections 2.2. 2.3 or 2.5.
"Person" shall mean an individual, partnership, limited partnership, trust, estate,
association, corporation, limited liability company, joint venture, firm, joint stock company,
unincorporated association, Governmental Authority, governmental agency or other entity,
domestic or foreign.
"Planned Development Permit" shall mean the conditionally approved a planned
development permit(Case 5.0948 PD-291) for the Project on October 19, 2005.
EXHIBIT NO.2
2005 GEIGER DDA
Page 8 of 10
DRAFT
"Potential Default" shall mean the state of being potentially in Material Default, as
further defined in Section 14.
"Preliminary Plan(s)" shall have the meaning set forth in Section 8.5.3.
"Preliminary Title Report" shall have the meaning set forth in Section 6.2.
"Private Improvements" shall mean all of the buildings, structures, landscaping and
other improvements, other than the Public Improvements, to be constructed or installed on the
Site, consistent with the approved Project Plans, the Entitlements, demolition, grading and
building permits.
"Proprietor, Owner-Occupier" shall mean a person or persons who will own in fee and
occupy for residential and commercial/professional purposes, an individual Live-Work Unit.
"Project" shall have the meaning set forth in Sections 1.1 — 1.3.
"Project Architect" shall mean the architect or engineer, as applicable, designated in
writing by the Developer for a particular product type or improvement.
"Project Improvements" shall mean all Private and Public Improvements, collectively.
"Public Improvements" shall mean the public infrastructure improvements and utilities
required to be constructed or installed on or in coniection with the development of the
Developer Parcel as further described in Exhibit No. 7 to this Agreement including all public and
private streets, roadways, drives, alleyways, sidewalks.
"Purchase Price" is defined in Section 4.2.1.
"Release" (with respect to Hazardous Materials) shall mean any releasing, or threat of
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, migrating, disposing, or dumping into the environment.
"Remediate" or "Remediation" shall mean any response or remedial action as defined
under Section 101(25) of CERCLA, and similar actions with respect to Hazardous Materials as
defined under comparable state and local laws, and any other cleanup, removal, containment,
abatement, recycling, transfer, monitoring, storage, treatment, disposal, closure, restoration or
other initigation or rermediation of Hazardous Materials or Releases required by any
Environmental Agency or within the purview of any Environmental Laws.
"Right of Reversion" shall have the meaning set forth in Section 16.1.
"Schedule of Performance" shall mean the document attached as Exhibit No. 6 to this
Agreement, setting forth the dates and time periods for submissions, approvals and actions,
including the construction of the Project Improvements.
EXHIBIT NO.2
2005 GEIGER DDA
Page 9 of 10
DRAFT
"Scope of Development" shall mean the description of the Project attached as Exhibit
No. 7.
"State" shall mean the State of California.
"Subdivision Map" shall mean any tentative or final map for the Site approved by the
City in accordance with the Subdivision Map Act and the City Code.
"Subdivision Map Act" shall mean the California Subdivision Map Act as codified in
Cal. Government Code Section 66410 et seq.
"Subordination and Consent" shall have the meaning set forth in Section 2.7.3.
"Title Commitment" shall have the meaning set forth in Section 6.2.
"Title Company" shall mean Title Insurance Company.
"Transfer of Control" shall have the meaning set forth in Section 2.3.
EXHIBIT NO.2
2005 GEIGER DDA
Page 10 of 10
DRAFT
EXHIBIT NO. 3
2005 GEIGER DDA
MEMORANDUM OF DDA
EXHIBIT NO.3
2005 GEIGER DDA
Page I of 6
DRAFT
RECORDING REQUESTED BY AND WHEN
RECORDED MAIL TO:
Community Redevelopment Agency of the City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: Executive Director
No fee for recording requested pursuant to Governnenl Code Sections 6103 and 27383
MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT
THIS MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT
("Memorandum of DDA") is made as of , 2005 by and between
the PALM SPRINGS COMMUNITY REDEVELOPMENT AGENCY, a State agency organized
for local purposes (Health and Safety Code Section 33000 et. seq.) (the "Agency"), and GEIGER
LLC, a California limited liability corporation (the "Developer") to confirm that the Agency and
the Developer have entered into that certain Disposition and Development Agreement dated as of
2005 (the "DDA") affecting the real property described below. The Agency
and the Developer are sometimes referred to herein individually as a "Party" and collectively as
the "Parties." Initially capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to such terms in the DDA.
1. Property Affected by the DDA. The following described land is subject to the tenns,
covenants, conditions and restrictions set forth in the DDA effective as to such land upon the
date of acquisition thereof by the Developer:
1.1 The "Agency Parcel" consisting as of the date hereof of that certain property
located in the City of Palm Springs, County of Orange, California and described in Exhibit 1 B to
the DDA.
1.2 This Memorandum of DDA has been executed and shall be recorded immediately
following the execution and recordation by the Agency and the Developer of the Grant Deed
with respect to the Developer Parcel and the DDA and this Memorandum of DDA shall each be
binding upon the Developer Parcel in accordance with its terns.
2. Effect of DDA. The DDA imposes certain obligations, agreements, covenants,
conditions and restrictions with respect to the Developer Parcel and Developer's acquisition,
development, use, operation, and ultimate disposition thereof, that run with the land as further set
forth below, including, without limitation:
EXHIBIT NO.3
2005 GEIGER DDA
Page 2 of 6
DRAFT
(a) certain restrictions on transfer, conveyance, and/or assignment of the DDA and/or
the Developer Parcel, whether voluntary or involuntary, contained in Section 2.2 of the DDA,
that terminate upon execution and recordation by the Agency of the Certificate of Compliance;
(b) certain restrictions on Transfer of Control of the Developer, contained in Section
23 of the DDA, that terminate upon execution and recordation by the Agency of the Certificate
of Compliance;
(c) certain restrictions on Mortgages, contained in Section 2.6 of the DDA, that
terminate upon execution and recordation by the Agency of the Certificate of Compliance;
(d) the Release contained in Section 4.5.2(c) of the DDA (that is repeated in its
entirety in the Grant Deed) that remains in effect in perpetuity;
(e) the Indemnification and Environmental Provisions contained in Sectionl0.1 and
10.2 of the DDA that remains in effect in perpetuity;
(f) the non-discrimination covenants contained in Sections 12.3 through 12.4 of the
DDA (that are repeated in their entirety in the Grant Deed) that remain in effect in perpetuity;
(g) the deed restrictions on Live-Work Units contained in Section 13 of the DDA
(that is repeated in its entirety in the Grant Deed) that remain in effect in perpetuity;
(h) the Right of Purchase in favor of the Agency, contained in Section 14.2.2 of the
DDA, that terminates upon execution and recordation by the Agency of the Certificate of
Compliance or at such earlier time as is specified in the DDA; and
(i) the Right of Reversion contained in Section 16 of the DDA (copied verbatim
below from the DDA), that terminates upon execution and recordation by the Agency of the
Certificate of Compliance or at such earlier time as is specified in the DDA.
3. Effect on Mortmes; Right To Encumber.
Notwithstanding any other provision of the DDA, the Developer shall have the right to
encumber the fee title to portions of the Developer Parcel owned by it with a Permitted Mortgage
made by a Permitted Mortgagee subject to compliance with the terns, conditions and limitations
set forth in Section 2.6 of the DDA and Mortgages complying with the terns of said section and
entered into by Developer with Permitted Mortgagees shall be deemed to be "Permitted
Mortgages'; provided, however that all Mortgages shall be subject and subordinate to the DDA.
4. Certificate of Compliance.
Upon the Developer's satisfaction of the conditions set forth in Section 9.6 of the DDA
with respect to a Certificate of Compliance, the Agency shall furnish the Developer with the
appropriate Certificate of Compliance in recordable form upon written request there for by the
EXHIBIT NO.3
2005 GEIGER DDA
Page 3 of 6
DRAFT
Developer. Such Certificate of Compliance shall be binding upon the parties to this
Memorandum of DDA, their successors and assigns, and shall be deemed the Agency's
conclusive determination of satisfactory Completion of the Improvements covered by such
Certificate of Compliance and compliance with all other conditions required by the DDA, subject
only to such continuing terms of the DDA and/or obligations of the Developer as are set forth
therein.
5. DDA and Memorandum of DDA Run With the Land.
Except as otherwise provided herein or in the DDA, the DDA and this Memorandum of
DDA, including, without limitation, the provisions recited and set forth above, and all other
obligations, agreements, covenants, conditions and restrictions set forth in the DDA and this
Memorandum of DDA, are hereby agreed by the Developer and the Agency to be covenants
running with the land and enforceable as equitable servitudes against the Developer Parcel, and
are hereby declared to be and shall be binding upon the Developer Parcel and the Developer
and the successors and assigns of the Developer owning all or any portion of the Developer
Parcel for the benefit of the Agency and the successors and assigns of the Agency.
6. Acknowledgement and Assumption by Developer.
By acceptance of the Grant Deed the Developer hereby acknowledges and assumes all
responsibilities placed upon the Developer under the terns of the Grant Deed and DDA.
7. Public Documents.
The documents constituting the DDA are public documents and may be reviewed at the
official offices of the Agency.
8. Interpretation; Notice.
This Memorandum of DDA is prepared for recordation and notice purposes only and in
no way modifies the terns, conditions, provisions and covenants of the DDA. In the event of any
inconsistency between the terms, conditions, provisions and covenants of this Memorandum of
DDA and the DDA, the terms, conditions, provisions and covenants of the DDA shall prevail.
EXHIBIT NO.3
2005 GEIGER DDA
Page 4 of 6
DRAFT
IN WITNESS WHEREOF, the Agency and the Developer have signed this Memorandum
of DDA as of the date first set forth above.
Community Redevelopment Agency
of the City of Palm Springs
Dated: By:
David Ready, Executive Director
ATTEST:
By:
Agency Secretary
APPROVED AS TO FORM
Office of Agency Counsel
By:
Agency Counsel
DEVELOPER:
Geiger, LLC, a California Limited Liability
Company,
Dated: By:
Title:
By:
Title:
EXHIBIT NO.3
2005 GEIGER DDA
Page 5 of 6
DRAFT
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
On before me, a
Notary Public in and for said state, personally appeared
personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument, the person, or the
entity upon behalf of which the person action, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(SEAL)
EXHIBIT NO.3
2005 GEIGER DDA
Page 6 of 6
EXHIBIT NO. 4
2005 GEIGER DDA
GRANT DEED TO DEVELOPER
GRANT DEED
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Community Redevelopment Agency of the City of Palm Springs
3200 E. Tahquitz Carryon Way
Pahn Springs, CA 92262
Attn: Executive Director
(Space Above This Line for Recorder's Office Use Only)
(Exempt from Recording Fee per Gov. Code§6103)
GRANT DEED
FOR A VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged,
the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a
public body, corporate and politic ("Grantor") acting under the Community Redevelopment Law
of the State of California, hereby grants to GEIGER, LLC, a California limited liability
corporation ("Grantee"), the real property, hereinafter referred to as the "Site," in the City of
Palm Springs, County of Riverside, State of California, as more particularly described in Exhibit
"A" attached hereto and incorporated herein by this reference.
As conditions of this conveyance, Grantee covenants by and for itself and any successors-
in-interest for the benefit of Grantor and the City of Palm Springs, a municipal corporation, as
follows:
I. Governing Documents. The Site is being conveyed: (i) pursuant to a Disposition
and Development Agreement ("DDA") entered into by and between Grantor and Grantee dated
, 2005; and (ii) subject to the terms of the DDA, this Deed, the CC&Rs, and the
Redevelopment Plan, as those terns are defined in the DDA. The DDA and the Redevelopment
Plan are public records on file in the office of the City Clerk of the City of Palm Springs, located
at 3200 E. Tahquitz Canyon Way, Palm Springs, California 92262, and are incorporated herein
by this reference. Any capitalized terns not defined herein shall have the meanings ascribed to
them in the DDA. Grantee covenants and agrees for itself and its successors and assigns to
develop the Site in accordance with the DDA and thereafter to use, operate and maintain the Site
in accordance with the Redevelopment Plan, this Deed, and the CC&Rs. The Site is also
conveyed subject to easements and rights-of-way of record and other matters of record. In the
event of any conflict between this Deed and the DDA, the provisions of the DDA shall control.
2. Uses. After commencement of construction pursuant to the Schedule of
Performance, Developer may only use the Site consistent with the terms, covenants and
EXHIBIT No.4
2005 GEIGER DDA
Page I of 6
conditions as set forth in the DDA and the CC&Rs. Grantee shall have no right to subdivide,
separate, or partition the Site, except upon prior written consent of Grantor, which consent shall
not be unreasonably withheld. Breach of the terns, covenants, conditions, and provisions of the
DDA and CC&Rs shall be a material breach of this Deed.
3. Tenn of Restriction. Grantee hereby covenants and agrees for itself, its
successors, its assigns, and every successor-in-interest to the Site that Grantee, such successors
and such assigns, shall not develop, operate, maintain or use the Site in violation of the terns and
conditions of the DDA, this Deed and the Redevelopment Plan (unless expressly waived in
writing by Grantor) for the term of the Redevelopment Plan; provided that, however, the
covenants contained in Sections 7 and 8 shall remain in effect in perpetuity.
4. Right of Re-Entry Prior to Completion. Grantee covenants by and for itself and
any successors-in-interest that Grantor shall have the right, at its option, to reenter and take
possession of the Site hereby conveyed, with all improvements thereon, and re-vest in Grantor
the estate conveyed to the Grantee, if after Closing and prior to recordation of the Certificate of
Compliance, Grantee or successor-in-interest shall commit a material default as described in
Section 705 of the DDA. Pursuant to Section 705 of the DDA, Grantor's right to re-enter,
repossess, terminate, and re-vest shall be subordinate to and subject to and be limited by, and
shall not defeat, render invalid, or limit (1) any mortgage, deed of trust, or other security interests
permitted by the DDA, or (2) any rights or interest provided in the DDA for the protection of
holders of such mortgages, deeds of bust, or other security interests.
5. Reservation of ExistingStreets.reets. Grantor excepts and reserves any existing street,
proposed street, or portion of any street or proposed street lying outside the boundaries of the
Site which might otherwise pass with a conveyance of the Site.
6. Transfer Restrictions. Grantee covenants that prior to the recordation of the
Certificate of Completion, Grantee shall not transfer the DDA, the Site or any of its interests
therein except as provided in Section 303 of the DDA.
7. Non-Discrimination. Grantee covenants that there shall be no discrimination
against, or segregation of, any persons, or group of persons, on account of race, color, creed,
religion, sex, sexual orientation, marital status, age, national origin or ancestry in the rental, sale,
lease, sublease, transfer, use, occupancy, or enjoyment of the Site, or any portion thereof, nor
shall Grantee, or any person claiming under or through Grantee, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection, location,
number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the Site or
any portion thereof. The nondiscrimination and non-segregation covenants contained herein
shall remain in effect in perpetuity.
8. Form of Nondiscrimination Clauses in Agreements. Grantee shall refrain from
restricting the rental, sale, or lease of any portion of the Site on the basis of race, color, creed,
religion, sex, sexual orientation, marital status, age, national origin or ancestry of any person.
All such deeds, leases, or contracts shall contain or be subject to substantially the following
nondiscrimination or non segregation clauses:
EXHIBIT No.4
2005 GEIGER DDA
Page 2 of 6
(a) Deeds: In deeds the following language shall appear: "The grantee herein
covenants by and for itself, its heirs, executors, administrators and assigns, and all
persons claiming under or through them, that there shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion,
sex, sexual orientation, marital status, age, national origin or ancestry in the sale, lease,
rental, sublease, transfer, use, occupancy, tenure, or enjoyment of the land herein
conveyed, nor shall the grantee itself, or any persons claiming under or through it,
establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use, or occupancy of tenants, lessees,
subtenants, sublessees, or vendees in the land herein conveyed. The foregoing covenants
shall run with the land."
(b) Leases: In leases the following language shall appear: "The lessee herein
covenants by and for itself, its heirs, executors, administrators, successors and assigns,
and all persons claiming under or through them, and this lease is made and accepted upon
and subject to the following conditions:
"That there shall be no discrimination against or segregation of any person or
group of persons on account of race, color, creed, religion, sex, sexual orientation, marital
status, age, national origin or ancestry in the leasing, subleasing, renting, transferring,
use, occupancy, tenure, or enjoyment of the land herein leased nor shall the lessee itself,
or any person claiming under or through it, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location,
number, use, or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the
land herein leased."
(c) Contracts: In contracts pertaining to conveyance of realty the following
language shall appear: "There shall be no discrimination against or segregation of any
person or group of persons on account of race, color, creed, religion, sex, sexual
orientation, marital status, age, national origin or ancestry in the sale, lease, rental,
sublease, transfer, use, occupancy, tenure, or enjoyment of the land, nor shall the
transferee itself, or any person claiming under or through it, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection,
location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or
vendees of the land."
The foregoing covenants shall remain in effect in perpetuity.
9. Mortgage Protection. No violation or breach of the covenants, conditions,
restrictions, provisions or limitations contained in this Deed shall defeat or render invalid or in
any way impair the lien or charge of any mortgage, deed of trust or other financing or security
instrument permitted by and approved by Grantor pursuant to the DDA; provided, however, that
any successor of Grantee to the Site shall be bound by such remaining covenants, conditions,
restrictions, limitations and provisions, whether such successor's title was acquired by
foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise. The foregoing shall limit any
rights of holders of any mortgage, deed of trust, or other financing or security instrument set
forth in the DDA.
EXHIBIT No.4
2005 GEIGER DDA
Page 3 of 6
10. Covenants to Run With the Land. The covenants contained in this Deed shall be
construed as covenants running with the land and not as conditions which might result in
forfeiture of title, and shall be binding upon Grantee, its heirs, successors and assigns to the Site,
whether their interest shall be fee, easement, leasehold,beneficial or otherwise.
IN WITNESS WHEREOF, Grantor and Grantee have caused this instrument to be
executed on their behalf by their respective officers or agents hereunto as of the date first above
written.
"GRANTOR":
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
Date: By.
Chair
ATTEST:
Fly:
Agency Secretary
APPROVED AS TO FORM:
By:
Agency Counsel
EXHIBIT No.4
2005 GEIGER DDA
Page 4 of 6
By its acceptance of this Deed, Grantee hereby agrees as follows:
1. Grantee expressly understands and agrees that the terns of this Deed shall be
deemed to be covenants running with the land and shall apply to all of the Grantee's successors
and assigns (except as specifically set forth in the Deed).
2. The provisions of this Deed are hereby approved and accepted.
"GRANTEE"
GEIGER, LLC
By:
Date: Its:
EXHIBIT No.4
2005 GEIGER DDA
Page 5 of 6
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
On before me, 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.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
On before me, 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.
Notary Public
[SEAL]
EXHIBIT No.4
2005 GEIGER DDA
Page 6 of 6
DRAFT
ATTACHMENT TO EXHIBIT NO. 4
2005 VIP GEIGER DDA
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
[To Be Inserted]
ATTACHMENT TO
EXHIBIT NO.4
2005 GEIGER DDA
Page 1 of I
DRAFT
EXHIBIT NO. 5
2005 GEIGER DDA
PRELIMINARY TITLE
[See attached Chicago Title Company Preliminary Report dated October 24, 2005]
EXHIBIT NO.5
2005 GEIGER DDA
Page I of 23
DRAFT
I
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C CHICAGO TITLE COMPANY
f �•J PRELIMINARY REPORT
S Dated as oh. October 24.2005 at 7:30 AM
i
Reference: PALMSPRINGS Order No.: 52035805-K26
CHICAGO TITLE COMPANY hereby reports that It is prepared to issue,or cause to be issued,as
of the date hereof,a Policy or Policies of Title Insurance describing the land and the estate or interest therein hereinafter
set forth, insuring against loss which may be sustained by reason of any defect, lien or encumbrance not shown or
referred to as an Exception in Schedule B or not excluded from coverage pursuant to the printed Schedules.Conditions
and Stipulations of said Policy forms.
The printed Exceptions and Exclusions from the coverage of said Policy or Policies are set forth in the attached list.
Copies of the Policy forms are available upon request
Please read the exceptions shown or referred to In Schedule B and the exceptions and exclusions set forth In the
attached list of this report carefully.The exceptions and exclusions are meant to provide you with notice of matters
which are not covered under the terms of title insurance policy and should be carefully considered.It Is Important to
note that this preliminary report is not a written representation as to the condition of title and may not list all liens,
defects and encumbrances affecting title to the land.
THIS REPORT (AND ANY SUPPLEMENTS OR AMENDMENTS HERETO) IS ISSUED SOLELY FOR THE PURPOSE OF
FACILITATING THE ISSUANCE OF POLICY OF TITLE INSURANCE AND NO LIABILITY IS ASSUMED HEREBY. IF IT IS
DESIRED THAT LIABILITY BE ASSUMED PRIOR TO THE ISSUANCE OF POLICY OF TITLE INSURANCE,A BINDER OR
COMMITMENT SHOULD BE REQUESTED
The form of policy of title insurance contemplated by this report is:
CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY
Visit s sae Web:Westerndivision.cit corn
I
Title Department: O Escrow Department:
CHICAGO TITLE COMPANY CHICAGO TITLE COMPANY
560 E.HOSPITALITY LANE 580 EAST HOSPITALITY LANE
SAN BERNARDINO,CA 92408 SAN BERNARDINO,CALIFORNIA 92408
(909)391-6751 fax:(909)384-7961 (909)8B4-0448 fax:(909)384-7893
Escrow No.:
KELLY MCDOLE
TITLE OFFICER
I,
PFP-W/�/99hk
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EXHIBIT NO.5
2005 GEIGER DDA
Page 2 of 23
DRAFT
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SCHEDULE A
Order No: 5203580E K26 Your Ref: PALM SPRINGS
f
1. The estate or interest in the land hereinafter described or referred to covered by this report is:
f A FEE
f
I .
2. Title to said estate or interest at the date hereof is vested in:
COMMUNITY REIEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS
3. The land referred to in this report is situated in the Slate of California,County of RIVERS IDE
and is described as follows:
SEE ATTACHED DESCRIPTION
t
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EXHIBIT NO.5
2005 GEIGER DDA
Page 3 of 23
DRAFT
i
Page I DESCRIPTION
Order No. 5203580E
PARCEL A:
PARCEL 2 OF PARCEL MAP NO. 24604 ON FILE IN BOOK 159 PAGES 66 AND 67 OF PARCEL
MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
PARCEL B:
PARCEL 1 OF PARCEL MAP 18787 IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 135, PAGES 53 AND 54 OF PARCEL
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
A CERTIFICATE OF CORRECTION BEING RECORDED FEBRUARY 6, 1987 AS INSTRUMENT NO.
34738 OFFICIAL RECORDS.
PARCEL C:
PARCEL 2 OF PARCEL MAP 18787 IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 135, PASSES 53 AND 54 OF PARCEL
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
A CERTIFICATE OF CORRECTION BEING RECORDED FEBRUARY 61 1987 AS INSTRUMENT NO.
34738 OFFICIAL RECORDS,
II
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EXHIBIT NO.5
2005 GEIGER DDA
Page 4 of 23
DRAFT
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f SCHEDULE B
I
Page I
Order No: 52035808 X26 Your Ref: PALM SPRINGS
At the date hereof exceptions to coverage in addition to the printed Exceptions and Exclusions in the policy
farm designated on the face page of this Report would be as Follows:
n 1. THE LIEN OF SUPPLEMENTAL TAXES, IF ANY, ASSESSED PURSUANT TO THE
PROVISIONS OF CHAPTER 3.5 (COMMENCING WITH SECTION 75) OF THE REVENUE AND
TAXATION CODE OF THE STATE OF CALIFORNIA.
e 2. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS
SET FORTH IN A DOCUMENT
GRANTED TO: THE SOUTHERN SIEREAS POWER COMPANY
PURPOSE: PUBLIC UTILITIES
RECORDED: MAY,9, 1922 IN BOOK 570 PAGE 34 OF DEEDS
AFFECTS: PORTION OF PARCELS H AND C AS DESCRIBED IN SAID
DOCUMENT.
c 3. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS
SET FORTH IN A DOCUMENT
GRANTED TO: CALIFORNIA WATER AND TELEPHONE COMPANY, A
CORPORATION
PURPOSE: PUBLIC UTILITIES
RECORDED: JULY 12, 1957 IN BOOK 2117, PAGE 483 OF OFFICIAL
RECORDS
AFFECTS: PORTION OF PARCEL B AS DESCRIBED IN SAID DOCUMENT.
n 4. AN BASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS
SET FORTH IN A DOCUMENT
GRANTED TO: CITY OF PALM SPRINGS
PURPOSE: STREET AND PUBLIC UTILITIES
RECORDED: APRIL 29, 1977 AS INSTRUMENT NO. 74689 OFFICIAL
RECORDS
AFFECTS: PORTION OF PARCEL A AS DESCRIBED IN SAID DOCUMENT.
n 5. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS
SET FORTH IN A DOCUMENT
GRANTED TO: CITY OF PALM SPRINGS
PURPOSE: AVIGATION
RECORDED: DULY 13, 1977 AS INSTRUMENT NO. 130987 OFFICIAL
RECORDS
AFFECTS: PARCELS B AND C AS DESCRIBED IN SAID DOCUMENT.
r 6. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS
Fa -10/31/97bh
EXHIBIT NO.5
2005 GEIGER DDA
Page 5 of 23
DRAFT
SCHEDULE B
I
Page 2 (continued)
P
I prdcr No: 52035808 K2 Your Ref: PALM SPRINGS '
i
1 SET FORTH IN A DOCUMENT
GRANTED TO: GOLDEN WEST EQUITY PROPERTIES
PURPOSE: STREET AND PUBLIC UTILITIES
RECORDED: AUGUST 23, 1979 AS INSTRUMENT NOS. 177941 AND 177942
BOTH OF OFFICIAL RECORDS
AFFECTS: PORTION PARCEL A AS DESCRIBED IN SAID DOCUMENT.
c 7. THE FACT THAT SAID LAND IS INCLUDED WITHIN A PROJECT AREA. OF THE
REDEVELOPMENT AGENCY SHOWN BELOW, AM THAT PROCEEDINGS FOR THE
REDEVELOPMENT OF SAID PROJECT HAVE BEEN INSTITUTED UNDER THE REDEVELOPMENT
LAW (SUCH REDEVELOPMENT TO PROCEED ONLY AFTER THE ADOPTION OF TIME
REDEVELOPMENT PLAN) AS DISCLOSED BY A DOCUMENT.
REDEVELOPMENT
AGENCY: THE RAMON-BOGIE REDEVELOPMENT PROJECT
RECORDED: DECEMBER 1, 1983 AS INSTRUMENT NO. 249707 OF OFFICIAL
RECORDS
I
AFFECTS: PARCELS A, B AND C
r S. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS
SHOWN OR AS OFFERED FOR DEDICATION ON THE RECORDED MAP SHOWN BELOW.
MAP OF: PARCEL MAP 18787 91135/53-54
EASED= 1
PURPOSE: STREET AND PUBLIC UTILITIES I
AFFECTS: AS SHOWN ON SAID MAP.
i
s 9. A DEED OF TRUST TO SECURE PERFORMANCE UNDER AN AGREEMENT REFERRED TO
THEREIN, AND ANY OTHER OBLIGATIONS SECURED THEREBY I
i
DATED: APRIL 16, 1986
TRUSTOR: PETER EPSTEEM - PONTIAC-BUICK-ROLLS ROYCE-BRITISH
TMPORTB, TNC., LTD., DBA PETER EPSTEEM, LTD.
TRUSTEE: TICOR TITLE INSURANCE CO.
BENEFICIARY: THE REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS
RECORDED: APRIL 17, 1996 AS INSTRUMENT NO. 88472 OFFICIAL
RECORDS
AFFECTS: PARCEL B
s A SUBSTITUTION OF TRUSTEE UNDER SAID DEED OF TRUST WHICH NAMES AS THE pf
SUBSTITUTED TRUSTEE, THE FOLLOWING IC4�
TRUSTEE: THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM 4
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EXHIBIT NO.5
2005 GEIGER DDA
Page 6 of 23
DRAFT
SCHEDULE B
{ Page 3 (continued)
Order No: 52035BOB K26 Your Ref: PALM SPRINGS
SPRINGS, CALIFORNIA
RECORDED: DECEMBER 26, 1990 AS INSTRUMENT NO. 463153 OFFICIAL
RECORDS
m 10. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS
SET FORTH IN A DOCUMENT
GRANTED TO: THE CITY OF PALM SPRINGS, A MUNICIPAL CORPORATION
PURPOSE: STREETS, HIGHWAYS, UNDERGROUND SEWERS, PUBLIC UTILITY
RECORDED: APRIL 21, 1998 AS INSTRUMENT NO. 154175 OFFICIAL
RECORDS
AFFECTS: PORTIONS OF PARCELS A, B AND C AS DESCRIBED IN SAID
DOCUMENT.
ry 11. ANY DEFECT IN THE TITLE TO PARCEL B BASED ON THE FACT THE DEED RECORDED
DECEMBER 26, 1990 AS INSTRUMENT NO. 463154 OFFICIAL RECORDS DOES NOT HAVE A
CERTIFICATE OF ACCEPTANCE ATTACHED THERETO.
P END OF SCHEDULE B
a NOTE NO. 1: IF THIS COMPANY IS REQUESTED TO DISBURSE FUNDS IN CONNECTION
WITH THIS TRANSACTION, CHAPTER 598, STATUTES OF 1989 MANDATES HOLD PERIODS
FOR CHECKS DEPOSITED TO ESCROW OR SUB-ESCROW ACCOUNTS. THE MANDATORY HOLD
PERIOD FOR CASHIER'S CHECKS, CERTIFIED CHECKS AND TELLER'S CHECKS IS ONE
BUSINESS DAY AFTER THE DAY DEPOSITED. OTHER CHECKS REQUIRE A HOLD PERIOD OF
FROM TWO TO FIVE BUSINESS DAYS AFTER THE DAY DEPOSITED. IN THE EVENT THAT
THE PARTIES TO THE CONTEMPLATED TRANSACTION WISH TO RECORD PRIOR TO THE
TIME THAT THE FUNDS ARE AVAILABLE FOR DISBURSEMENT (AND SUBJECT TO COMPANY
APPROVAL), THE COMPANY WILL REQUIRE THE PRIOR WRITTEN CONSENT OF THE
PARTIES. UPON REQUEST, A FORM ACCEPTABLE TO THE COMPANY AUTHORIZING SAID
EARLY RECORDING MAY BE PROVIDED TO ESCROW FOR EXECUTION.
WIRE TRANSFERS
THERE IS NO MANDATED HOLD PERIOD FOR FUNDS DEPOSITED BY CONFIRMED WIRE
TRANSFER. THE COMPANY MAY DISBURSE SUCH FUNDS THE SAME DAY.
CHICAGO TITLE WILL DISBURSE BY WIRE (WIRE-OUT) ONLY COLLECTED FUNDS OR
FUNDS RECEIVED BY CONFIRMED WIRE (WIRE-IN) . THE FEE FOR EACH WIRE-OUT IS
$25.00. THE COMPANY'S WIRE-IN INSTRUCTIONS ARE:
WIRE-IN INSTRUCTIONS FOR C & I/SUBDIVISION INLAND: {{2
BANK: UNION BANK
2001 MICHELSON DRIVE
IRVINE, CA 92714 y
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EXHIBIT NO.5
2005 GEIGER DDA
Page 7 of 23
DRAFT
SCHEDULE B
Page 9 (continued)
Order No: 52035808 K26 Your Ref: PALM SPRINGS
BANK ABA: 122 000 496
ACCOUNT NAME: CHICAGO TITLE COMPANY
C&I/SUBDIVISION-INLAND
'i
ACCOUNT NO.: 9120052850
FOR CREDIT TO: CHICAGO TITLE COMPANY
560 EAST HOSPITALITY LANE
SAN BERNARDINO, CA 92408 7
FURTHER CREDIT TO: ORDER.NO. : 052035908
NOTE N0. 2: IF A 1970 ALTA OWNER'S OR LENDER'S OR 1975 ALTA LEASEHOLD
OWNER'S OR LENDER'S POLICY FORM HAS BEEN REQUESTED, THE POLICY, WHEN
APPROVED FOR ISSUANCE, WILL BE ENDORSED TO ADD THE FOLLOWING TO TUB
EXCLUSIONS FROM COVERAGE CONTAINED THEREIN:
LOAN POLICY EXCLUSION: i
ANY CLAIM, WHICH ARISES OUT OF THE TRANSACTION CREATING THE INTEREST OF THE
MORTGAGEE INSURED BY THIS POLICY, BY REASON OF THE OPERATION OF FEDERAL
BANKRUPTCY, STATE INSOLVENCY OR SIMILAR CREDITORS' RIGHTS LAWS.
OWNER'S POLICY EXCLUSINN f
I
ANY CLAIM, WHICH ARISES OUT OF THE TRANSACTION VESTING IN THE INSURED,THE
ESTATE OR INTEREST INSURED BY THIS POLICY, BY REASON OF THE OPERATION OF
FEDERAL BANKRUPTCY, STATE INSOLVENCY OR SIMILAR CREDITORS' RIGHTS LAWS.
i
NOTE NO. 3: CHICAGO TITLE COMPANY WILL REQUIRE THAT WE BE FURNISHED A
WRITTEN STATEMENT FROM THE BENEFICIARY OF ANY OUTSTANDING DEED OF TRUST
THAT THE ACCOUNT IS FROZEN PRIOR TO OUR PAYING THE DEMAND IF SAID DIED OF
TRUST SECURES A LINE OF CREDIT.
i
0 NOTE NO. 4: PROPERTY TAXES FOR THE FISCAL YEAR SHOWN BELOW ARE PAID. FOR 4
INFORMATION PURPOSES THE AMOUNTS ARE:
j
FISCAL YEAR: 2005-2006
1ST INSTALLMENT: $00.00 NO TAXES DUE
2ND INSTALLMENT: $00.00 NO TAXES DUE
EXEMPTION: $NONE
CODE AREA: 011-003 p"p
ASSESSMENT NO: 677-280-041-9 N
n NOTE N0. 5: PROPERTY TAXES FOR THE FISCAL YEAR SHOWN BLOW ARE PAID. FOR b
INFORMATION PURPOSES THE AMOUNTS ARE:
FISCAL YEAR: 2005-2006
Y
PPELM6Ge/aa/Batik 1
EXHIBIT NO.5
2005 GEIGER DDA
Page 8 of 23
DRAFT
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SCHEDULE E
Page 5 (CUIItIIIllCd) ,
Order No: 52035000 A26 YOUT Ref: PALM SPRINGS
I �
I
1ST INSTALLMENT: $00.00 NO TAXES DUE
2ND INSTALLMENT: $00.00 NO TAXES DUE
EXEMPTION: $NONE
CODE AREA: 011-047
ASSESSMENT NO: 677-420-032-3
s NOTE NO. 6: PROPERTY TAXES FOR THE FISCAL YEAR SHOWN BELOW ARE PAID. FOR
INFORMATION PURPOSES THE AMOUNTS ARE:
FISCAL YEAR: 2005-2006
1ST INSTALLMENT: $00.00 NO TAXES DUE
2N0 INSTALLMENT: $00.00 NO TAXES DUE
EXEMPTION: $NONE
CODE AREA: 011-047
ASSESSMENT NO: 677-420-033-4
T RM/LE
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EXHIBIT NO.5
2005 GEIGER DDA
Page 9 of 23
DRAFT
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Notice
You may be entitled to receive a$20.00 discount on escrow services if you purchased,sold or refinanced residential
property in California between May 19, 1995 and November 1, 2002. If you had more than one qualifying
transaction,you may be entitled to multiple discounts.
I
j If your previous transaction involved the same property that is the subject of your current transaction,you do not
have to do anything;the Company will provide the discount,provided you are paying for escrow or title services in
this transaction.
If your previous transaction involved property different from the property that is subject of your current
transaction,you must inform the Company of the earlier transaction,provide the address of the property involved
in the previous transaction,and the date or apprmdmate date that the escrow closed to be eligible for the discount.
Unless you inform the Company of the prior transaction on property that is not the subject of this transaction,the
Company has no obligation to conduct an investigation to determine if you qualify for a discount.If you provide
the Company information concerning a prior transaction,the Company is required to determine if you qualify for
a discount.
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EXHIBIT NO.5
2005 GEIGER DDA
Page 10 of 23
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o This plat is for your aid in locating your land with
f" m reference to streets and other parcels. It is not a
L)X survey. While this plat is believed to be Correct,the
N m= Company aseLIMOS no liability for any loss occuring
. 3 m by reason of reliance thereon.
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W Cf IC®M 135%1052 1 0 6iPdCi NO 12f50 09
u6fssca•s uir rRnr m.a Pµ 159/6fi-67 PARCEL N.W 24604
Nheradr ra��tr,Cow. ab rn 2na4
N
This plat Is for your aid in locating your land with
c�sr reference to streets and other parcels. It is not a
m
m 0 survey.While this plat Is believed to be correct, the
m m= Company assumes no liability for any loss occuring
L)w by reason of reliance thereon.
N m CHICAGO TITLE INSURANCE COMPANY
o AZ
O y
wy� I
DRAFT
I;
_ CHICAGO TITLE INSURANCE COMPANY
Fidelity National Financial Group of Companies'Privacy Statement
July 1,2001
We recognize and respect the privacy expectation of today's consumers and the requirements of applicable federal and
state privacy laws. We believe that making you aware of how we use your non-public personal information ("Personal
Information'),and to whom it is disclosed,will form the basis for a relationship of trust between us and the public that we
serve.This Privacy Statement provides that explanation.We reserve the right to change this Privacy Statement from time
to time consistent with applicable privacy laws.
In the course of our business,we may collect Personal Information about you from the following sources:
*From applications or other fors we receive from you or your authorized representative;
*From your transactions with,or from the services being performed by,us,our affiliates,or others;
*From our Internet web sites;
*From the public records maintained by governmental entitles that we either obtain directly from
those entities,or from our affiliates or others;and
*From consumer or other reporting agencies.
Our Policies Regarding The Protection Of The Confidentiality And Security Of Your Personal Information
We maintain physical, electronic and procedural safeguards to protect your Personal Information from unauthorized
access or Intrusion. We limit access to the Personal Information only to those employees who need such access in
connection with providing products or services tD you or for other legitimate business purposes.
Our Policies and Practices Regarding the Sharing of Your Personal Information
We may share your Personal Information with our affiliates,such as insurance companies,agents,and other real estate
settlement service providers.We may also disclose your Personal Information:
*to agents,brokers or representatives to provide you with services you have requested;
*to third-party contractors or service providers who provide services or perform marketing or other
functions on our behalf;and
*to others with whom we enter into joint marketing agreements for products or services that we
believe you may find of interest.
In addition,we will disclose your Personal Information when you direct or give us permission,when we are required by
law to do so,or when we suspect fraudulent or criminal activities.We also may disclose your Personal Information when
otherwise permitted by applicable privacy laws such as, for example, when disclosure is needed to enforce our rights K
arising out of any agreement,transaction or relationship with you.
i
One of the important responsibilities of some of our affiliated companies Is to record documents in the public domain.
Such documents may contain your Personal Information,
Right To Access Your Personal Information And Ability To Correct Errors Or Request Change Or Deletion I
t
Cnitain states afford you the right to access your Personal Information and, under certain circumstances,to find out to
whom your Personal Information has been disclosed. Also, certain states afford you the right to request correction,
amendment or deletion of your Personal Information. We reserve the right, where permitted by law, to charge a
reasonable fee to cover the costs incurred in responding to such requests.
All requests must be made in writing to the following address: 1
Privacy Compliance Officer $
Fidelity National Financial,Inc.
601 Riverside Drive
Jacksonville,FL 32204
Multiple Products or Services:
N
If we provide you with more than one financial product or service,you may receive more than one privacy notice from us. 4
We apologize for any inconvenience this may cause you.
PPovnetr-m/21/MM '
EXHIBIT NO.5
2005 GEIGER DDA
Page 13 of 23
DRAFT
r-_.____... - - - -
I '
Attached to Order No. 052035508
CLTA PRELIMINARY REPORT FORM
Exhibit A(Revised 01/04/02)
CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY-1990
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or
damage,costs,attorneys'fees or expenses which arise by reason of.,
1. (a) Any law,ordinance or governmental regulation (including but not limited to building or zoning laws,
ordinances, or regulations) restricting, regulating, prohibiting or relating (1) the occupancy, use, or
enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter
erected on the land;(ii)a separation In ownership or a change In the dimensions or area of the land or any I
parcel of which the land Is or was a part;or(iv) environmental protection,or the effect of any violation of
these laws, ordinances or governmental regulations,except to the extent that a notice of the enforcement
there of or a notice of a defect,lien,or encumbrance resulting from a violation or alleged violation affecting
the land has been recorded in the public records at Date of Policy. '
I
2. (b) Any governmental police power not excluded by(a)above,except to the extent that a notice of the
exercise thereof or notice of a defect, lien or encumbrance resulting from a violation or alleged violation
affecting the land has been recorded In the public records at Date of Polley.
Rights of eminent domain unless notice of the exercise thereof has been recorded in the pubic records at j
Date of Policy,but not excluding from coverage any taking which has occurred prior to Date of Polley which
would be binding on the rights of a purchaser for value without knowledge.
3. Defects,liens encumbrances,adverse claims or other matters:
(a) whether or not recorded in the public records at Date of Policy, but created, suffered, assumed or
agreed to by the insured claimant;
(b) not known to the Company, not recorded in the public records at Date of Policy,but known to the -
insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the
insured claimant became an insured under this policy;
(c) resulting in no loss or damage to the Insured claimant;
(d) attaching or created subsequent to Date of Policy;or j
(e) resulting in loss or damage which would not have been sustained if the insured had paid value for the
Insured mortgage or for the estate or interest Insured by this policy. i
4, Unenforceablllty of the lien of the insured mortgage because of the inability or failure of the insured at Date
of Policy, or the inability or failure of any subsequent owner of the Indebtedness, to comply with the ;
applicable doing business laws of the state In which the land is situated.
Invalidity or unenforceablllty of the lien of the Insured mortgage, or claim thereof which arises out of the transaction
evidenced bythe insured mortgage and is based upon usury or any consumer credit protection ortruth in lending law. l
P
5. Any claim which arises out of the transaction vesting in the insured the estate of interest insured by this
policy or the transaction creating the interest of the insured lender, by reason of the operation of federal
bankruptcy,state insolvency or similar creditors'rights laws.
i
GLT=PI—ea/2o/ozM f
EXHIBIT NO.5
2005 GEIGER DDA
Page 14 of 23
DRAFT
i Flltached to Oxder No, 052035808
1 CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY-1990
(Continued)
EXCEPTIONS FROM COVERAGE-SCHEDULE B,PART 1
This policy does not insure against loss or damage(and the Company will not pay costs,attorneys'fees or expenses)
which arise by reason of:
1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that
levies taxes or assessments on real property or by the public records.
Proceedings by a public agency which may result in taxes or assessments,or notices of such proceedings,
whether or not shown by the records of such agency or by the public records.
2. Any facts, rights, interests. or claims which are not shown by the public records but which could be
ascertained by an inspection of the land which or which may be asserted by persons in thereof.
3. Easements,liens or encumbrances,or claims thereof,which are not shown by the public records.
4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a
correct survey would disclose,and which are not shown by the public records.
5. (a) Unpatented mining claims; (b)reservations or exceptions in patents or in Acts authorizing the issuance
thereof;(c)water rights,claims or title to water,whether or not the matters excepted under(a),(b)or(c)are
shown by the public records.
I
i
f
s
M
B
11
ti
I
CLTASC -03/20/U2 4
EXHIBIT NO.5
2005 GEIGER DDA
Page 15 of 23
DRAFT
Attached to Order No.05203580 9
III CLTA HOMEOWNER'S POLICY OF TITLE INSURANCE(6/2/96)
ALTA HOMEO WNER'S POLICY OF TITLE INSURANCE(10/17/98)
EXCLUSIONS
In addition to the Exceptions in Schedule B, You are not insured against loss, costs, attorneys'fees, and expenses
resulting from:
1. Governmental police power, and the existence or violation of any law or government regulation. This
includes ordinances,laws and regulations concerning
a. building
b. zoning
Land use
d. improvements on the Land
e. Land division
1 environmental protection
This Exclusion does not apply to violations or the enforcement of these matters If notice of the violation or
enforcement appears in the Public Records atthe Policy Date.
This Exclusion does not limit the coverage described in Covered Risk 14,15,16.17 or 24.
2. The failure of Your existing structures,or any part of them,to be constructed In accordance with applicable
building codes. This Exclusion does not apply to violations of building codes If notice of the violation
appears in the Public Records at the Policy Date. i
3. The right to take the Land by condemning it,unless
a. notice of exercising the right appears in the public records at the Policy Date;or i
b, the taking happened before the Policy Date and is binding on You 9 You bought the land
without Knowing of the taking. 4
G
4. Risks: j
a. that are created, allowed, or agreed to by You, whether or not they appear In the Public 's
Records;
b. that are Known to You at the Policy Date, but not to Us, unless they appear in the Public
Records at the Policy Date:
e1 that result in no loss to You;or p
d. that first occur after the Policy Date-this does not limit the coverage described in Covered
Risk 7,8.d,22,23,24 or 25. E
5. Failure to pay value for YOUR Title.
s. Lack of a right:
a. to any Land outside the area specifically described and referred to in paragraph 3 of Schedule
A;and p
b, in streets,alleys,or waterways that touch the Land. kr;
prp
This Exclusion does not limit the coverage described In Covered Risk 11 or 1S. 4
6
GLTRIOP-m/20/vePA
EXHIBIT NO.5
2005 GEIGER DDA
Page 16 of 23
DRAFT
'v Attached to Order No.052035808
AMERICAN LAND TITLE ASSOCIATION RESIDENTIAL TITLE INSURANCE POLICY(6-1-87)
EXCLUSIONS
In addition to the Exceptions in Schedule 8,you are not insured against loss,costs attorneys'fees,and expenses resulting
from:
i
1. Governmental police power,and the existence or violation of any law or governmental regulation.
This includes building and zoning ordinances and also laws and regulations concerning:
land use
Improvements on the land
land division
environmental protection
This exclusion does not apply to violations or the enforcement of these matters which appear in the public
records at Policy Date.
This exclusion does not limitthe zoning coverage described in Items 12 and 13 d Covered Title Risks.
2. The right to take the land by condemning it,unless:
a notice of exercising the right appears in the public records on the Policy Pate
the taking happens prior to the Policy Date and is binding on you if you bought the land without
knowing of the taking
3. Title Risks:
that are created,allowed,or agreed to by you
that are known to you, but not to us, on the Policy Date - unless they appear In the public
records
that result In no loss to you
that first affect your title after the Policy Date-this does not limit the labor and material lien
coverage in item a of Covered Title Rlsks
f
r
4. Failure to payvalue for your title. `
5. Lack of a right:
to any land outside the area specifically described and referred to in Item 3 of Schedule A
OR
in streets,alleys,or waterways that touch your land E
This exclusion does not limit the access coverage In Item 5 of Covered Title Risks.
�I
PLTPnIIP-03/23/02 pp
y
EXHIBIT NO.5
2005 GEIGER DDA
Page 17 of 23
DRAFT
Attached to Order No. 052035808
AMERICAN LAND TITLE ASSOCIATION LOAN POLICY(10-17-92)
WITH ALTA ENDORSEMENT-FORM 1 COVERAGE
i and'
AMERICAN LAND TITLE ASSOCIATION LEASEHOLD LOAN POLICY(10-17-92)
WITH ALTA ENDORSEMENT-FORM 1 COVERAGE
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy and the Company will not pay less or
damage,costs,attorneys'fees or expenses which arise by reason of:
1. (a) Any law, ordinance or governmental regulation (including but not limited to building and
zoning laws, ordinances, of regulations)restricting,regulating,prohibiting or relating to O the
occupancy, use, or enjoyment of the land; (li) the character, dimensions or location of any
Improvement now or hereafter erected on the land;(iii)a separation in ownership or a change
in the dimensions or area of the land or any parcel of which the land Is or was part; or(IV)
environmental protection, or the effect of any violation of thes laws, ordinances or
governmental regulations, except to the extent that a notice of the enforcement thereof or a
notice of a defect,lien or encumbrance resulting from a violation or alleged violation affecting
the land has been recorded in the public records at Date of Policy.
(b) Any governmental police power not excluded by(a)above, except to the extent that a notice
of the exercise thereof or a notice of a defect,lien or encumbrance resulting from a violation or
alleged violation affecting the land has been recorded in the public records at Date of Policy-
2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at
Date of Policy,but not excluding from coverage any taking which has occurred prior to Date of Policy which
would be binding on the rights of a purchaserfor value without knowledge.
3. Defects,liens,encumbrances,adverse claims or other matters: ''
(a) created,suffered,assumed or agreed to by the insured claimant;
(b) not known to the Company,not recorded In the public records at Data of Policy,but known to
the insured claimant and not disclosed In writing to the Company by the insured clalmant prior
to the date the insured claimant became an insured under this policy;
(0) resulting in no loss or damage to the insured claimant;
f
(d) attaching or created subsequent to Date of Policy(except to the extent that this policy insures
the priority of the lien of the insured mortgage over any statutory lien for services, labor or s
material or to the extent insurance is afforded herein as to assessments for street
Improvements under construction or completed at Date of Policy);or
(e) resulting In loss or damage which would not have been sustained If the Insured claimant had
paid value for the insured mortgage. I
4. Unenforceability of the lien of the Insured mortgage because of the inability or(allure of the insured at Date
of Policy, or the inability or failure of any subsequent owner of the indebtedness to comply with applicable 3
doing business laws of the state in which the land b situated
5. Invalidity or unenforceabliity of the lien or the insured mortgage,or claim thereof,which arises out of the V�
transaction evidenced by the insured mortgage and is based upon usury or any consumer credit protection V
or truth in lending law. ICI
II
i
i
)
WAWE1-a3�2o�a2M
EXHIBIT NO.5
2005 GEIGER DDA
Page 18 of 23
DRAFT
IAttached to Order No.052035808
AMERICAN LAND TITLE ASSOCIATION LOAN POLICY(10-17-92)
WITH ALTA ENDORSEMENT-FORM t COVERAGE
and
AMERICAN LAND TITLE ASSOCIATION LEASEHOLD LOAN POLICY(10-17-92)
WITH ALTA ENDORSEMENT-FORM 1 COVERAGE
(CONTINUED)
6. Any statutory lien for services, labor or materials (or the claim of priority of any statutory lien for services,
labor or materials over the lien of the Insured mortgage)a6sing from an improvement or work related to the
land which is contracted for and commenced subsequent to Date of Policy and Is not financed in whole or
In part by proceeds of the Indebtedness secured by the Insured mortgage which at Date of Policy the
Insured has advanced or is obligated to advance.
7. Any claim,which arises out of the transaction creating the interest of the mortgagee insured by this policy,
by reason of the operation of federal bankruptcy, state Insolvency, or similar creditors'rights laws,that is
based on:
(i) the transaction creating the interest of the insured mortgagee being deemed a fraudulent
conveyance or fraudulent transfer;or
(ii) the subordination of the Interest of the Insured mortgagee as a result of the doctrine of
equitable subordination;or
the transaction creating the interest of the insured mortgagee being deemed a preferential
transfer except where the preferential transfer results from the failure:
(a) to timely record the instrument of transfer;or
(b) of such recordation to Impart notice to a purchaser for value or a judgment or
lien creditor.
The above policy forms may be issued to afford either Standard Coverage or Extended Coverage. In addition to the
above Exclusions from Coverage,the Exceptions from Coverage in a Standard Coverage policy will also include the
following General Exceptions: j
EXCEPTIONS FROM COVERAGE
This policy does not insure against loss or damage(and the Company will not pay costs,attorneys'fees or expenses)
which arise by reason of:
t. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that
levies taxes or assessments on real property or bythe public records. I
Proceedings by a public agency which may result In taxes or assessments,or notices,of such proceedings,
whether or not shown by the records of such agency or by the public records.
2. Any facts, rights, interests or claims which are not shown by the public records but which could be
ascertained by an Inspection of the land or by making inquiry of persons in possession thereof.
3. Easements,liens,or encumbrances,or claims thereof,which are not shown by the public records.
4. Discrepancies, conflicts in boundary lines, shortage In area, encroachments, or any other facts which a 3
correct survey would disclose,and which are not shown by the public records.
5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance
thereof; (c)water rights,ciatms or title to water,whether or not the matters excepted under(a),(b)or(c)are
shown by the public records.
P1iHtPE2-03/zo/ozM
EXHIBIT NO.5
2005 GEIGER DDA
Page 19 of 23
DRAFT
Attached to Order No.052.035808
f ,
ALTA EXPANDED COVERAGE RESIDENTIAL LOAN POLICY(10/13/01)
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss of
damage.costs,attorneys fees or expenses which arise by reason oh
i. (a) Any law, ordinance or governmental regulation (Including but not limited to zoning laws,
ordinances, or regulations) restricting, regulating, prohibiting or relating to(1)the occupancy,
use, or enjoyment of the Land; (II)the character, dimensions or location of any improvements
now or hereafter erected on the Land ; (111) a separation In ownership or a change In the
dimensions or areas of the Land or any parcel of which the Land Is or was a part; or
(!!)environmental protection, or the effect of any violation of these laws, ordinances or
governmental regulations, except to the extent that a notice of the enforcement thereof or a
notice of a defect,lien or encumbrance resulting from a violation or alleged violation affecting
the Land has been recorded In the Public Records at Date of Policy.This excl,sion does not
limit the coverage provided under Covered Risks 12,13,14,and 16 of this policy.
(b) Any governmental police power not excluded by(a)above,except to the extent that a notice
of the exercise thereof or a notice of a defect,lien or encumbrance resulting from a violation or
alleged violation affecting the Land has been recorded In the Public Records at Date of Policy.
This exclusion does not limit the coverage provided under Covered Risks 12,13,14,and 16 of
this policy. -
2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the Public Records atI,
Date of Policy,but not excluding from coverage`an'y taking which has occurred prior to Date of Policy which
would be binding on the rights of a purchaserfor value without Knowledge.
3. Defects,liens,encubrances,adverse claims or other matters:
(a) created,suffered,assumed or agreed to by the Insured Claimant; j
(b) not Known to the Company,not recorded in the Public Records at Date of Policy, but Known I
to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant
prior to the date the Insured Claimant became an Insured under this policy;
(c) resulting in no loss damage to the Insured Claimant;
(d) attaching or created subsequent to Date of Policy (this paragraph does limit the coverage
provided under Covered Risks B,16,18,19,20,21,22,23,24,25 and 26);or
(e) resulting In loss or damage which would not have been sustained If the Insured Claimant had
paid value forthe Insured Mortgage.
a
4. Unenforceability of the lien of the Insured Mortgage because of the inability or fallure of the Insured at Date
of Policy,or the inability or failure of any subsequent owner of the indebtedness,to comply with applicable
doing business laws of the state in which the Land is situated.
5. Invalidity or unenforceabllity of the lien of the Insured Mortgage, or claim thereof, which arises out of the
transaction evidenced by the Insured Mortgage and is based upon usury, except as provided In Covered
Risk 27,or any consumer credit protection or truth In lending law.
F
ALTAHiLI-0/W/02M
k
EXHIBIT NO.5
2005 GEIGER DDA
Page 20 of 23
DRAFT
Attached to Order No.052035 e09
ALTA EXPANDED COVERAGE RESIDENTIAL LOAN POLICY(10/18/01)
f (Continued)
C 6. Real property taxes or assessments of any governmental authority which become a lien on the Land
subsequent to Date of Policy.This exclusion does not limit the coverage provided under Covered Risks 7,
8(e)and 26.
7. Any claim of invalidity,unenforceability or lack of priority of the lien of the Insured Mortgage as to advances
or modifications made after the Insured has Knowledge that the vestee shown In Schedule A is no longer
the owner of the estate or interest covered by this policy. This exclusion does not limit the coverage
provided In Covered Risk 8.
6. Lack of priority of the lien of the Insured Mortgage as to each and every advance made after Date of Policy,
and all interest charged thereon, over liens, encumbrances and other matters affecting the title, the
existence of which are Known to the Insured at:
(a) The time of the advance;or
(b) the time a modification is made to the terms of the Insured Mortgage which changes the
rate of interest charged, if the rate of interest is greater as a result of the modification
than It would have been before the modification. This exclusion does not limit the
coverage provided in Covered Risk S.
9. The failure of the residential structure,or any portion thereof to have been constructed before, on or after
Date of Policy in accordance with applicable building codes.This exclusion does not apply to violations of
building codes if notice of the violation appears in the Public Records at Date of Policy.
i
i
3
y[I
{FP
QE3
F
C
PLTGEfll2-rci/20/02pq yr
1
EXHIBIT NO.5
2005 GEIGER DDA
Page 21 of 23
DRAFT
I�
Attached to Order No.052 035808
III AMERICAN LAND TILLE ASSOCIATION OWNER'S POLICY(t 0-t 7-92)
and
AMERICAN LAND TITLE ASSOCIATION LEASEHOLD OWNER'S POLICY(10-17-92)
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the Coverage of this policy and the Company will not pay loss or
damage,costs,attorneys'Fees or expenses which arise by reason of:
t. (a) Any law,ordinance or governmental regulation(including but not limited to building and zoning
laws, ordinances, or regulations)restricting, regulating, prohibiting or relating to (i) the occupancy,
use, or enjoyment of the land; (ii)the character, dimensions or location of any improvement now or
hereafter erected on the land; (!if)a separation in ownership or a change in the dimensions or area of -
the land or any parcel of which the land is or was a part;or(iv)environmental protection,orthe effect 1
of any violation of these laws, ordinances or governmental regulations, except to the extent that a
notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a
violation or alleged affecting the land has been recorded In the pubic records at Date of Policy.
2. (b) Any governmental police power not excluded by(a)above, except to the extent notice of the
exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged
violation affecting the land has been recorded in the public records at Date of Policy.
Rights of eminent domain unless notice of the exercise thereof has been recorded In the public
records at Date of Policy, but not excluding from coverage any taking which has occurred prior to
Data of Polley which would be biding on the rights of a purchaser for value without knowledge.
3
3. Defects,liens,encumbrances,adverse claims or other matters:
(a) created,suffered,assumed or agreed to by the Insured claimant;
(b) not known to the Company, not recorded In the public records at Date of Policy, but
known to the insured claimant and not disclosed in writing to the Company by the
insured claimant prior to the date the insured claimant became an insured under this '
policy;
i
(c) resulting In no loss or damage to the insured claimant; [
(d) attaching or created subsequent to Data of Policy;or
(a) resulting in loss or damage which would not have been sustained if the insured claimant €
had paid value for the estate or Interest Insured by this policy. f
4. Any claim,which arises out of the transaction vesting In the Insured the estate or interest insured by [
this policy, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors'
rights laws,that Is based on: t
(1) the transaction creating the estate or interest insured by this policy being deemed a
fraudulent conveyance or fraudulent transfer;or
(11) the transaction creating the estate or interest Insured by this policy being deemed a b
preferential transfer except where the preferential transfer results from the failure:
(a) to timely record the instrument of transfer;or
(b) of such recordation to impart notice to a purchaser for value or a judgment
or lien creditor. a
3
ALTAOPLI-03/20/02w
EXHIBIT NO.5
2005 GEIGER DDA
Page 22 of 23
DRAFT
i�
1
Attached to Order No.052 035 BOB
AMERICAN LAND TILLE ASSOCIATION OWNER'S POLICY(10-17-92)
and
AMERICAN LAND TITLE ASSOCIATION LEASEHOLD OWNER'S POLICY(10-17-92)
(Continued)
The above policy forms may be issued to afford either Standard Coverage or Extended Coverage.In addition to
the above Exclusions from Coverage, the Exceptions from Coverage In a Standard Coverage Policy will also
include the following General Instructions:
EXCEPTIONS FROM COVERAGE
i
This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or
expenses)which arise by reason of:
i
1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority
that levies taxes or assessments on real property or by the public records.
Proceedings by a public agency which may result in taxes or assessments, or notices of such
proceedings,whether or not shown bythe records of such agency or by the public records. i
2. Any facts, rights, Interests or claims which are not shown by the public records but which could be
ascertained by an inspection of the land or by making inquiry of persons in possession thereof.
a. Easements,liens or encumbrances,or claims thereof,which are not shown bythe public records.
4. Discrepancies,conflicts in boundary lines,shortage In area,encroachments or any other tads which
a correct survey would disclose,and which are not shown by the public records. j
5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the
issuance thereof;(c)water rights,claims or title to water,whether or not the matters excepted under
(a),(b)or(c)are shown by the public records.
E
i
i
r
ii
AITAOPl2-03/24/02PA yt
L
EXHIBIT NO.5
2005 GEIGER DDA
Page 23 of 23
DRAFT
EXHIBIT NO. 6
2005 GEIGER DDA
SCHEDULE OF PERFORMANCE
Agreement
Item To Be Performed Time For Performance Reference
1. Agency approves DDA November 16, 2005 N/A
2. Developer provides Agency with Upon Developer's execution 5.2 & 7.3.1
satisfactory evidence of financial and delivery of DDA to
capability and documentation related Agency - to occur within two
to Developer's limited partnership (2) weeks of Developer's
and general partner receipt of DDA from Agency
approved as to form by
Agency counsel
3. Agency delivers fully executed DDA Within two (2) weeks after N/A
to Developer approval of DDA by Agency
and execution and delivery
of DDA by Developer to
Agency
4. Agency delivers to Developer Concurrent with execution 6.2
Preliminary Title Report and of DDA by Developer and
Developer approves Permitted Agency
Exceptions
5. Open Escrow- Developer and Not later than one (1) 4.4
Agency each deliver an executed Business Day after full
original counterpart of DDA to execution of DDA by
Escrow Holder Developer and Agency
6. End of 30-Day Period following filing November 23, 2005 7.2.5
of Notice of Determination for
approval of Final EIR.
7. Developer submittal to Agency of Prior to Close of Escrow 6.1
certified survey identifying all
Permitted Exceptions and whether or
not Project lies within a flood hazard
zone.
8. Escrow Agent gives statement of At least two (2) business 7.4.1
costs to close escrow to each of days prior to Closing Date
Agency and Developer
EXHIBIT NO.6
2005 GEIGER DDA
Page I of 4
DRAFT
Agreement
Item To Be Performed Time For Performance Reference
gi. Deposits into Escrow by Agency:
a) Executed Grant Deed On or before 1:00 p.m. on 7.2.1
the last business day
preceding the Close of
Escrow
b) Payment of Agency's Share of On or before 1:00 p.m. on 7.5.1
Escrow Costs the last business day
preceding the Closing date
c) Such other documents On or before 1:00 p.m. on 7.2.1
required by the DDA and/or the last business date
reasonably required by the preceding the Closing Date
Escrow Holder
10. Deposits into Escrow by Developer:
a) Memorandum of DDA On or before 1:00 p.m. on 2.7 & 7.3.3
the last business date
preceding the Closing Date
b) Reaffirmation of Developer On or before 1:00 p.m. on 7.3.3 &
Representations & Warranties the last business day 7.3.6
and Release preceding the Closing date
c) CC&Rs On or before 1:00 p.m. on 8.9
the last business date
preceding the Closing Date
d) Payment of Developer's Share On or before 1:00 p.m. on 7.5.1
of Escrow Costs the last business date
preceding the Closing Date
e) Certificates evidencing On or before 1:00 p.m. on 7.3.8
insurance the last business date
preceding the Closing Date
EXHIBIT NO.6
2005 GEIGER DDA
Page 2 of 4
DRAFT
Agreement
Item To Be Performed Time For Performance Reference
11. Close of Escrow for Site; recordation Within five (5) working days 7.1 & 7.2.5
and delivery of documents after satisfaction of
Developer's Closing
Conditions and Agency's
Closing Conditions but no
earlier than thirty-one days
since City's and Agency's
filing of Notice of
Determination under CEQA
for the project.
12. Developer prepares and submits to Within 120 days after 8.2
City any required plans, drawings approval of Project
and specifications Entitlements (Event No. 16)
13. City approves (or disapproves) plans, Within 45 days after 8.2
and specifications, drawings submittal by Developer
14. Developer revises and resubmits Within 30 days after 8.2
plans, drawings, and specifications, if disapproval
necessary
15. City reviews and approves or Within 15 days after 8.2
disapproves resubmitted plans, resubmittal
drawings, and specifications, if
necessary
16. Developer obtains all necessary On or before the date that is 8.2 & 8.5.11
permits and approvals, and ten (10) days after the date
commences construction of City notifies Developer that
improvements City is prepared to issue
building permits for the
Project, but no later than
July 1, 2006
17. Developer completes construction of Within one year after 9.1
improvements issuance of building permits
EXHIBIT NO. 6
2005 GEIGER DDA
Page 3 of 4
DRAFT
Agreement
Item To Be Performed Time For Performance Reference
18. Agency issues certificate of Within ten (10) days of 9.1 thru 9.7
Compliance for the Site or any phase written request by
thereof Developer, and Developer's
satisfactory completion of all
improvements
It is understood that the foregoing Schedule of Performance is subject to all of
the terms and conditions set forth in the text of the Agreement. The summary of the
items of performance in this Schedule of Performance is not intended to supersede or
modify the more complete description in the text. In the event of any conflict or
inconsistency between this Schedule of Performance and the text of the Agreement, the
text shall govern.
The time periods set forth in this Schedule of Performance may be altered or
amended only by written agreement signed by both Buyer and Agency. A failure by
either party to enforce a breach of any particular time provision shall not be construed
as a waiver of any other time provision.
EXHIBIT NO.6
2005 GEIGER DDA
Page 4 of 4
DRAFT
EXHIBIT NO. 7
2005 GEIGER DDA
SCOPE OF DEVELOPMENT
PI. General
The Developer agrees that the Site shall be developed and improved in
accordance with the provisions of this Agreement, including all attachments, and
the plans, drawings, and related documents approved by the Agency pursuant
hereto and in accordance with the project approval granted under Resolution No.
21433 adopted by the Palm Springs City Council on October 19, 2005. Any
questions or issues regarding the Scope of Development not included or
addressed herein or in the Disposition and Development Agreement ("DDA")
shall be resolved in accordance with the Palm Springs Municipal Code.
B. Development Standards
The Project shall be constructed in accordance with all conditions of approval as
stated in above referenced City Council Resolution No. 21433 including the
following:
1. Signs: All signs shall be installed by the Developer. A sign program shall
be submitted to the City for approval. Building and, where necessary,
electrical permits shall be obtained prior to installation, painting or
erection of signs.
2. Undergrounding Utilities: All new utilities servicing the Site shall be
installed underground, including connections to facilities within the public
right-of-way.
3. Mechanical Equipment: On-site mechanical equipment, whether roof or
ground mounted, shall be completely screened from public view. Where
public visibility will be minimal, the Director of Planning may permit use of
landscaping to screen ground-mounted equipment. No mechanical
equipment, including electrical transformers, shall be located in any
required setback area.
4. Lighting: On-site lighting shall be installed in a manner consistent with the
approved lighting and electrical plans.
EXHIBIT NO 7
2005 GEIGER DDA
Page I Of 2
DRAFT
C. Site Work
The Developer shall be responsible for construction and installation of all Site
improvements as shown on the attached Exhibit A. The Developer's
improvements shall include, but may not be limited to, the following:
1. Construction of buildings designed to accommodate "big box", retail and
restaurant uses, which building(s) shall consist of approximately 393,000
square feet of gross floor area. The anticipated gross building floor area as
indicated on the attached Exhibit A is as follows:
Major A: 117,194 s.f.
Garden Center: 34,757 s.f.
Majors C thru I: 157,727 s.f.
Food 1-4: 26,466 s.f.
Retail 1-4: 42,000 s.f.
Future Expansion: 14,856 s.f.
TOTAL ENCLOSED AREA: 393,000 s.f.
The above footages are approximate and may be adjusted to some
degree to fulfill program requirements.
2. Parking area(s) shall be provided on-site. The design and construction, as
well as the number of parking spaces provided, shall be in accordance
with the Palm Springs Municipal Code. Construction of the parking areas
shall include installation of necessary drainage system(s) (including
connections within the public right-of-way), paving, installation of required
landscaping and irrigation, striping and labeling, all in accordance with the
Palm Springs Municipal Code and approved plans.
D. Applicable Codes
All improvements shall be constructed in accordance with the California Building
Code (with Palm Springs modifications) and the California Fire Code (with Palm
Springs modifications), the Palm Springs Municipal Code and current City
standards.
EXHIBIT NO.7
2005 GEIGER DDA
Page 2 of 2
DRAFT
ATTACHMENT TO EXHIBIT NO. 7
2005 VIP GEIGER DDA
EXHIBIT "A"
CONCEPTUAL SITE PLAN
(See Next Page)
ATTACHMENT TO
EXHIBIT NO.7
2005 GEIGER DDA
Page 1 of 2
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EXHIBIT NO. 8
2005 VIP GEIGER DDA
METHOD OF FINANCING
The source of funding for the project is a combination of developer equity and debt
financing as described in the attached letters from Geiger, LLC and Farmers &
Merchants Bank.
EXHIBIT NO.8
2005 GEIGER DDA
Page 1 of 3
DRAFT
s
Geiger, LLC
18880WM YPwUM4 Sulk 450 La7/INVI-.,CA 90067
Te&phme(310)247-0900 efU (310)247-1525
November 2,2005
Cost Watts
City of Palm Springs-Community&Economic Dev't.Dept.
3200 E.Tahquitz Canyon Way
Palm Springs,CA 92263.2743
RE: The Spring Shopping Center
This letter is inteadcdto confirm the source of equity for the proposcd development of
The Springs Shopping Center at Northeast Comer of Gene Autry and Ramon,Pala
Springs,California The property is currently encumbered by a$750,000.00 Deed of
'hurt on the former Epstein property. Remediation and planning costs were finaumd
through altemede sources. Based on the City's recent appraisal,there is more than
$10,000,000.00 in equity,which is in excess of the required equity to qualify for the
proposed development financing.
Please do not hesitate to contact the undersigned for any additional information.
V y Yowl,
j. u
EXHIBIT NO 8
2005 GEIGER DDA
Page 2 of 3
DRAFT
k
Q
0 ng1 II
Farmers&Merchants
October 28,2005 Bank
Curt Watts,Redevelopment Administrator
Community Redevelopment Agency of the City of Palm Springs
32M Tahqul2 Canyon Way
Palm Springs,CA 92262
RE: Bank Letter of Recommendation
M&A Gabaee,LP
Geiger,I.I.C.
Dear Mr.Watts,.
Mr.Mark Gabay has requested that I provide Information regarding M&A
Gabaae,LP's banlnng telationship with Farmers&Merchants Bank of Long
Beach.It is my pleasure to provide the following information.
M&A Gabaae has been a customer of Farmers&Merchants Bank since 1998.
We have extended aggregate loans and ban commitments in excess of$120
mllllon since that time. At present,we have over$83 million in bans,fines of
credit and approved commitments. In addition,M&A Gabaae has The ability to
fund additional development activities,such as the Palm Springs project,
provided sufficient coileteml Is pkadged.
Needless to say,our relationship with Mc Gabay and M&A Gabaaa has been
outstanding.
SincAlely
ScottMcCrum
Vice President
22431)Hawrinwae BIVa
Twmnw,Cpldornia 90505
TM• po)265-3200
Fax:0101265-3242
EXHIBIT NO,8
2005 GEIGER DDA
Page 3 of 3
DRAFT
EXHIBIT NO. 9
2005 GEIGER DDA
FORM OF CERTIFICATE OF COMPLIANCE
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Cormnunity Redevelopment Agency of the City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: Executive Director
(Space Above This Line for Recorder's Office Use Only)
CERTIFICATE OF COMPLIANCE
WHEREAS, by that certain 2005 Disposition and Development Agreement
("Agreement") dated , by and between the COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate
and politic ("Agency"), and Geiger, LLC, a California corporation, ("Developer"), Developer has
agreed to develop that certain real property situated in the City of Palm Springs, California,
described on Exhibit "A" attached hereto and made a part hereof; and
WHEREAS, as referenced in the Agreement, Agency shall furnish Developer with a
Certificate of Compliance upon completion of construction and development, which certificate
shall be in such form as to permit it to be recorded in the Official Records of the County
Recorder of the County of Riverside, California; and
WHEREAS, the Agreement provided for certain covenants to nun with the land, which
covenants were incorporated in the Deed (as defined in the Agreement) or in that certain
Declaration of Covenants, Conditions and Restrictions recorded as Instrument No. of
the Official Records of the Riverside County Recorder("Declaration"); and
WHEREAS, this Certificate of Compliance shall constitute a conclusive determination by
Agency of the satisfactory completion by Developer of the construction and development
required by the Agreement and of Developer's full compliance with the terns of the Agreement
with respect to the construction and development of required by the Agreement, but not of the
Deed nor of the Declaration, the provisions of which shall continue to run with the land pursuant
too their terns; and
WHEREAS, Agency has conclusively detennined that the construction and development
on the real property described in Exhibit "A" required by the Agreement has been satisfactorily
completed by Developer in full compliance with the terns of the Agreement.
EXHIBIT NO.9
2005 GEIGER DDA
Page I of 4
DRAFT
NOW, THEREFORE,
1. The improvements required to be constructed have been satisfactorily completed
in accordance with the provisions of said Agreement.
2. This Certificate of Compliance shall constitute a conclusive determination of
satisfaction of the agreements and covenants contained in the Agreement with respect to the
obligations of the Developer, and its successors and assigns, to construct the improvements and
the dates for the beginning and completion thereof.
3. This Certificate of Compliance shall not constitute evidence of Developer's
compliance with the Deed or the Declaration, the provisions of which shall continue to run with
the land.
4. This Certificate of Compliance shall not constitute evidence of compliance with
or satisfaction of any obligation of the Developer to any holder of a mortgage or any insurer of a
mortgage securing money loaned to finance the improvements or any part thereof.
5. This Certificate of Compliance is not a Notice of Completion as referred to in
California Civil Code Section 3093.
6. Except as stated herein, nothing contained in this instrument shall modify in any
way any other provisions of the Agreement or any other provisions of the documents
incorporated therein.
IN WITNESS WHEREOF, the Agency has executed this Certificate of Completion this
day of
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM
SPRINGS
By:
Chair
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
Agency Counsel
EXHIBIT NO.9
2005 GEIGER DDA
Page 2 of 4
DRAFT
CONSENT TO RECORDATION
GEIGER, LLC, a California limited liability corporation, ('Developer") defined herein
and the owner of the fee title to the real property legally described herein, hereby consents to the
recordation of this Certificate of Compliance for Phase against the real property legally
described herein.
"DEVELOPER"
GEIGER, LLC
By:
Date: Its:
By:
Its:
EXHIBIT NO.9
2005 GEIGER DDA
Page 3 of 4
DRAFT
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
On the day of 2005, before me, the
undersigned, a Notary Public, in and for said State and County,personally appeared
, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed the within
instrument , a public
body, corporate and politic therein named, and acknowledged to me that such corporation
executed the within instrument pursuant to its bylaws or a resolution of its board of directors.
WITNESS my hand and official seal.
Signatwe of Notary
(SEAL)
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
On 2005, before me, 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.
Signatm a of Notary
[SEAL]
EXHIBIT NO.9
2005 GEIGER DDA
Page 4 of 4
DRAFT
ATTACHMENT TO EXHIBIT NO. 9
2005 VIP GEIGER DDA
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
[To Be Inserted]
ATTACHMENT TO
EXHIBIT NO.9
2005 GEIGER DDA
Page I of I
�QpLM SA
City f Palm Springs
c Y o am
u sn
« Office of the City Clerk
3200 E.Tah uitz Canyon Wa Palm Springs, California 92262
C RN
\RpORpTR `P w.Tel: (760)323-8204 • Pax: (760)322-8332 • Web: wwo.palm-spungs.ca.us
NOTICE OF CONTINUANCE
NOTICE IS HEREBY GIVEN that the regular meeting of November 2, 2005, Joint Public
Hearing Item No. RA1
APPROVAL OF A DISPOSITION AND DEVELOPMENT AGREEMENT WITH GEIGER,
LLC, FOR THE DISPOSITION OF 14 ACRES OF AGENCY-OWNED LAND FOR THE
PURPOSE OF DEVELOPING A 393,000 SQUARE FOOT RETAIL SHOPPING
CENTER ON 38 ACRES OF LAND AT THE NORTHEAST CORNER OF RAMON
ROAD AND GENE AUTRY TRAIL (HIGHWAY 111) IN THE CITY OF PALM SPRINGS,
MERGED REDEVELOPMENT PROJECT AREA NO. 1:
On November 2, 2005, no persons came forth to provide public testimony; therefore, on motion
by Council/Agency Member Mills, seconded by Council/Agency Member Foat, and unanimously
carried, the public hearing was continued to 6:00 p.m., November 16, 2005, Council Chamber,
3200 Tahquitz Canyon Way.
I, James Thompson, City Clerk/Assistant Secretary of the City of Palm Springs, California, /
Community Redevelopment Agency certify this Notice of Continuance was posted at or before
5:00 p.m., November 3, 2005, as required by established policies 7J'AM2SES
ures.
THOMPSON
City Clerk
61
H:\USERS\C-CLKWgenda Preparation\11-16-05\NOTICE OF CONT-A Hearing-Ramon Destination.doc
Post Office Box 2743 0 Palm Springs, California 92263-2743