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HomeMy WebLinkAbout00450C - BURNETT DEVELOPMENT OPTION AGR Burnett Development Corp Option Agreement AGREEMENT #450C R1184, 7-17-02 OPTION AGREEMENT BY AND BETWEEN THE PALM SPRINGS COMMUNITY REDEVELOPMENT AGENCY AND BURNETT DEVELOPMENT CORPORATION IRV#22743 vl _1_ OPTION AGREEMENT This Option Agreement (Agreement) is entered into as of July 31 2002, between The Community Redevelopment Agency of the City of Palm Springs, a public body (Optionor) and Burnett Development Corporation, a California corporation (Optionee). Recitals A. Optionor is the owner of two parcels of certain real property in the City of Palm Springs, Riverside County, California located on the corner of Sunrise Way and San Rafael Road consisting of approximately 41.39 acres, and more particularly described in attached Exhibit A and Al, including all rights, easements, and privileges appurtenant to the real property (collectively, "Property"). B. Optionee desires to acquire the exclusive right to purchase the Property at an agreed price and under the specific terms and conditions below. C. Optionor and Optionee are currently in the process of negotiating a Disposition and Development Agreement ("DDA') for the property pursuant to the requirements of California Community Redevelopment Law and the exercise of the Option shall be subject to prior approval of the DDA by both parties. For good and valuable consideration, the receipt and adequacy of which are acknowledged, the parties agree as follows: Section 1. Definitions. Agreement is defined in the preamble. Closing Date is defined in Section I1(a). Consummation of the Option is defined in Section 10. Environmental Laws means all federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any government authority regulating, relating to, or imposing liability or standards of conduct concerning any Hazardous Substance (as later defined), or pertaining to occupational health or industrial hygiene (and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to Hazardous Substances on, under, or about the Property), occupational or environmental conditions on, under, or about the Property, as now or may at any later time be in effect, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 USCS§9601 et seq.]; the Resource Conservation and Recovery Act of 1976 [42 USCS §§ 6901 et seq.]; the Clean Water Act (also known as the Federal Water Pollution Control Act) [33 USCS§§ 1251 et seq.]; the Toxic Substances Control Act [15 USCS §§ 2601 et seq.]; the Hazardous Materials Transportation Act [49 USCS §§ 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USCS §§ 136 et seq.]; the Superfund Amendments and Reauthorization Act [42 INCS §§ 6901 et scq.]; the Clean Air Act [42 USCS §§ 7401 et IRV 922743 VI -1- 0 seq.]; the Safe Drinking Water Act[42 USCS§§ 300f et seq.]; the Solid Waste Disposal Act[42 USCS§§ 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USCS§§ 1201 et seq.]; the Emergency Planning and Community Right to Know Act [42 USCS§§ 11001 et seq.]; the Occupational Safety and Health Act [29 USCS§§ 655 and 6571; the California Underground Storage of Hazardous Substances Act [H & S C §§ 25280 et seq.]; the California Hazardous Substances Account Act [H & S C §§ 25300 et seq.]; the California Hazardous Waste Control Act [H& S C§§ 25100 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [H& S C§§ 24249.5 et seq.]; the Porter-Cologne Water Quality Act [Wat C§§ 13000 et seq.], together with any amendments of or regulations promulgated under the statutes cited above and any other federal, state, or local law, statute, ordinance, or regulation now in effect or later enacted which pertains to occupational health or industrial hygiene, and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to Hazardous Substances on, under, or about the Property, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use. Exercise Notice is defined in Section 11(a). Gross Acre" or Gross Acreage means the entire gross area acquired by Optionee, including portions subject to existing or future dedication of public streets or other dedications required by governmental public agencies. Hazardous Substances include without limitation: (a) Those substances included within the definitions of hazardous substance, hazardous waste, hazardous material, toxic substance, solid waste, or pollutant or contaminant in the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 USCS §§ 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 [42 USCS§§ 6901 et seq.]; the Clean Water Act (also known as the Federal Water Pollution Control Act) [33 USCS §§ 1251 et seq.]; the Toxic Substances Control Act [15 USCS§§ 2601 et seq.]; the Hazardous Materials Transportation Act[49 USCS§§ 1801 et seq.] or under any other Environmental Law; (b) Those substances listed in the United States Department of Transportation Table [49 CFR 172.1011, or by the Environmental Protection Agency, or any successor agency, as hazardous substances[40 C:FR Part 302]; (c) Other substances, materials, and wastes that are or become regulated or classified as hazardous or toxic under federal, state, or local laws or regulations; and (d) Any material, waste, or substance that is: (i) a petroleum or refined petroleum product, (ii) asbestos, (iii) polychlorinated biphenyl, IRV 922743 v1 _Z_ (iv) designated as a hazardous substance pursuant to 33 USCS § 1321 or listed pursuant to 33 USCS § 1317, (v) a flammable explosive, or (vi) a radioactive material. Memorandum of Option is defined in Section 10(b). Option Consideration is defined in Section 4. Optionee is defined in the preamble. Optionor is defined in the preamble. Option Term is defined in Section 3. Prevailing Party is defined in Section 31. Property is defined in Recital A. Purchase Parcel is defined in Section 11(a). Purchase Price is defined in Section 8. Real Property Taxes includes all real property taxes and assessments, general, special, ordinary, or extraordinary, and improvement bond or bonds on the Property. Optionee has received a copy of a current tax bill for the Property. Title Company is defined in Section 4(b). Section 2. Grant of Option. Optionor grants to Optionee the exclusive option to purchase the Property on the terms and conditions in this Option Agreement. Section 3. Term of Option. The term of this option (Option Term) shall commence on the Execution Date and shall expire or terminate on the earliest of the following dates: (a) December 31, 2002, unless Optionee performs in a timely manner all obligations required by Optionee for the timely Consummation of the Option pursuant to Section 10; (b) The date on which a breach or default by Optionee remains uncured following notice of the breach or default given in accordance with Section 26(b) and the expiration of the grace period contained in that Section; or (c) The date that Optionee acquires the entirety of the Property; IRV 422743 v1 -3- 0 • (d) Immediately upon a breach or default by Optionee under Section 26(a). Section 4. Consideration for Option. As consideration for the option granted under this Agreement, Optionee agrees to pay to Optionor the following amounts (Option Consideration): (a) Concurrent with the execution of this Agreement, the sum of Dollars ($ ) by cashier's or certified check to Optionor; (b) On or before [elate], the sum of Dollars ($ ) by cashier's or certified check or wire transfer to [name of title company] (Title Company) to be held in escrow until the Consummation of Option. Section 5. Credit for Option Consideration. All Option Consideration paid by Optionee shall be credited to the Purchase Price of the Property. Section 6. Disbursement of Option Consideration. All Option Consideration paid to the Title Company shall be disbursed by the Title Company to Optionor in accordance with Section 11. Section 7. Retention of Option Consideration. All Option Consideration paid to or for the benefit of Optionor shall belong to Optionor and be retained by Optionor in consideration of granting this Option, whether or not Optionee ultimately exercises Optionee's right to purchase all or a portion of the Property subject to the rights of the Optionee under Section 5. Optionor has no duty to account to Optionee for the Option Consideration. Section 8. Purchase Price. The purchase price (Purchase Price) for both parcels of the Property is One Million Eighty Thousand Dollars ($1,080,000). Section 9. Subdivision Compliance. Prior to exercising the right to purchase any portion of the Property and subject to the provisions of the last sentence of this Section, Optionee must have obtained an approved DDA in compliance with the Community Redevelopment Law and a subdivision or parcel map approval for the parcel to be acquired, and Optionor's obligations to convey title to any portion of the Property are conditioned on Optionee's having obtained the subdivision or parcel map approval in full compliance with the Subdivision Map Act [Gov C §§ 66410 et seq.]. The map and compliance shall be Optionee's sole responsibility and at Optionee's sole expense. Optionee shall be solely responsible for obtaining all development entitlements required under this Agreement or desired by Optionee. Optionor shall provide reasonable and good faith IRV#22743 v1 -4- 0 • cooperation, but Optionor's obligations in this regard shall be expressly limited to the execution of applications and maps (parcel, tentative, and final) prepared by Optionee in connection with the development of the Property. Section 10. Consummation of Option. On July 15, 2002 the parties shall consummate this Option Agreement through Title Company. On the consummation (Consummation of the Option), the following events shall occur: (a) Optionee shall pay the Option Consideration required pursuant to Section 4(b) and all other charges provided in this Agreement that are then due from Optionee. (b) The parties shall execute in recordable form and deliver to Title Company the Memorandum of Option (Memorandum of Option) in the form of attached Exhibit B, incorporated in this Agreement. (c) The escrow fees shall be paid solely by Optionee. (d) The Title Company shall pay to Optionor the Option Consideration deposited by Optionee, less any charges or deductions provided by this Agreement which are then due from Optionor or authorized in writing by Optionor to be deducted from the Option Consideration. (e) Optionee shall deliver to Optionor the certificate of insurance required under Section 18(b). Section 11. Exercise of Option. From and after the Consummation of the Option and provided Optionee is not then in breach or default of the Agreement, Optionee may exercise the option to purchase all or a portion of the Property in accordance with the following provisions. Each provision must be satisfied as a condition to Optionee's rights under this Agreement and Optionor's obligation to convey to Optionee any portion of the Property: (a) Optionee shall give written notice (Exercise Notice) of the election to purchase all or a portion of the Property to Optionor and the Title Company. The Exercise Notice shall specify the parcel to be purchased (Purchase Parcel) and the date on which Optionee desires to close the purchase (Closing Date). The Closing Date shall be not less than ten (10) days after the giving of the Exercise Notice. (b) Optionee shall obtain approval of the DDA pursuant to the Colmnunity Redevelopment Law and a parcel map, tentative or final, allowing the conveyance of the Purchase Parcel in compliance with the Subdivision Map Act in accordance with Section 9. (c) Optioner shall have obtained a release of the leasehold interest incumbering one of the parcels of the Property. IRV#22743 vI -5- 0 • (d) On or before the Closing Date, Optionee shall pay and deliver to the Title Company in escrow, by cashier's or certified check or wire transfer, the Purchase Price for the Purchase Parcel to be acquired, provided Optionee shall receive credit for previously paid Option Consideration in accordance with Section 5 that has not been previously credited. Section 12. Acreage. Optionor makes no representation, express or implied, regarding the Gross Acreage of the Property. The Gross Acreage shall be determined in accordance with the survey to be conducted pursuant to Section 17. Section 13. Closing of the Purchase of Parcels. Provided the Title Company has received the Purchase Price from Optionee and the Title Company is in a position to issue the title insurance policy as described in this Agreement, the purchase of each Purchase Parcel shall be closed on the Closing Date pursuant to the escrow instructions provided in the DDA which shall have been approved prior to the exercise of the Option. Section 14. Title Insurance; Possession. (a) Title Insurance. As soon as possible after the Closing Date, Optionor shall cause the Title Company to issue to Optionee title insurance as provided by the DDA. (b) Possession. Optionor shall deliver possession of the property to Optionee on the Closing Date. Section 15. Development of Property. (a) Governmental Approvals. Optionee agrees that exercise of the option is subject to the parties executing a DDA with a proposed development agreement and potential community facilities district formation, all subject to the rules, regulations, standards, and criteria set forth in the Redevelopment Plan, the City's General Plan, applicable zoning regulations and with this Agreement. (b) Optionee's Right to Enter and Inspect. During the Option Term and prior to the Closing Date for the purchase of a Purchase Parcel, Optionee may perform certain grading activities in accordance with Section 19(b) and reasonable tests, engineering studies, surveys, soil and environmental tests, and other inspections, studies, and tests as Optionee may deem necessary, at Optionee's expense. Optionee will defend, indemnify, and hold Optionor harmless from any claim, loss, or liability in connection with any entry by Optionee, and any claim of lien or damage arising out of all activities by Optionee, Optionee's agents and employees, and independent contractors. Optionee will be solely responsible for all costs incurred in connection with these activities or Optionee's investigation of the Property. If the transaction does not close for any reason other than the breach of this Agreement by Optionor, Optionor will not be responsible for reimbursing Optionee for any expenses. Optionee shall obtain a public liability insurance policy for at least One Million Dollars ($1,000,000). A current certificate evidencing the insurance that names Optionor as an additional insured shall be delivered to Optionor on [RV#22743 v1 -6- 0 • Consummation of the Option. The certificate shall provide that the policy shall not be canceled without at least fifteen (15) days' prior notice to Optionor. This policy or a renewal or replacement of this policy shall remain in effect during the entire Option Term. Optionee shall keep the Property free of all mechanic's or similar liens in connection with all activities by or on behalf of Optionee in connection with the Property. Optionor shall also be entitled to record and post notices of nonresponsibility for any activities of Optionee in connection with the Property. (b) Negation of Agency or Partnership. Optionor's agreement to cooperate with Optionee in connection with Optionee's development of the Property and any other provision of this Agreement shall not be construed as making either party an agent or partner of the other party. (c) Work Product to Optionor. If for any reason Optionee does not acquire all of the Property, Optionee shall deliver to Optionor the entire written work product, except that which is subject to a recognized legal privilege, pertaining to the development and improvement of the remaining Property not acquired by Optionee. The work product includes all drawings, tests, supporting data, and plans or studies that Optionee owns or controls. Optionor will be entitled to receive and retain the work product at no cost. Section 16. Planning of Development; Other Property. (a) Zoning. Optionor shall be under no obligation to Optionee to approve the DDA, development agreement, community facilities district or obtain rezonings for Optionee's benefit. Optionee shall enter into this Agreement and shall acquire each Purchase Parcel, if any, solely on the basis of Optionee's own investigation and not in reliance on any representations by Optionor or Optionor's agents that are not contained in this Agreement. Section 17. Optionor's Representations and Warranties. (a) A leasehold interest currently encumbers one of the parcels of the property. Optionee acknowledges that removal of that encumbrance is subject to negotiation and that Optionor has not agreed to provide funds to insure its removal. (b) To the best of Optionor's knowledge, there are not presently any actions, suits, or proceedings pending or, to the best of Optionor's knowledge, threatened against or affecting the Property or the interest of Optionor in the Property or its use or that would affect Optionor's ability to consummate the transaction contemplated in this Agreement. Further, there are not any outstanding and unpaid arbitration awards or judgments affecting title to any portion of the Property, and Optionor shall promptly notify Optionee of any of these matters arising in the future. (c) To the best of Optionor's knowledge, there are not presently any pending or threatened condemnation, eminent domain, or similar proceedings affecting the Property. (d) Except as otherwise stated in this Agreement, the Property shall be purchased by Optionee AS IS, and Optionee shall purchase the Property solely on the basis of Optionee's own IRV 422743 vI investigation and not in reliance on any representations by Optionor or Optionor's agents that are not contained in this Agreement. Section 18. Optionor's Conduct Prior to Closing. During the Option Term and until this Agreement expires or terminates, Optionor shall comply with the following terms for Property that has not been previously purchased by and conveyed to Optionee pursuant to this Agreement: (a) Optionor shall pay for all labor and work performed and all material furnished at Optionor's request or on Optionor's behalf, and there shall be no claim for which a mechanic's, materialman's, or similar lien can be claimed by any person or firm against the Property as a result of any act of Optionor. (b) Optionor shall not affirmatively take any actions constituting waste of the Property, and shall not excavate, mine, or otherwise materially alter the Property. (c) Optionor shall not in the future enter into any lease, occupancy, tenancy, or license agreement affecting the Property, without Optionee's prior written consent. (d) Optionor shall not incur any obligations or liabilities or enter into any transactions that will affect the Property after the Closing Date of any sale to Optionee, without the prior written consent of Optionee. This consent shall not be unreasonably withheld. Section 19. Prior Use of the Property. Optionor warrants to Optionee that, except as provided in this Section, to the best of Optionor's actual knowledge, no Hazardous Substances have been disposed of or released into, on, or under the Property. This warranty is subject to the limitations that: (a) except as expressly provided in this Section, Optionor has not made or purported to have made any independent investigation or testing for Hazardous Substances, has not been present on the Property at all times, and shall only be accountable under this Agreement for any misrepresentation as to actual, not constructive, knowledge of the Hazardous Substances, and (b) Optionor has no knowledge as to the presence or absence of any contaminants or Hazardous Substances in any creek or other waterway or surface water drainage across the Property, and Optionor makes no representations or warranties as to the Property's water. These representations and warranties are further qualified in that Optionor shall have no liability or responsibility for any Hazardous Substances contamination or potential contamination on the Property of which Optionee or Optionee's agents or employees have knowledge, and in this regard, Optionee acknowledges receipt of copies of the correspondence, reports, agreements, and other documents attached to this Agreement as Exhibit D. Optionor shall have no liability or responsibility regarding any matters disclosed in Exhibit D, or the accuracy or current status of those matters. IRV 822743 A _8_ 0 Section 20. Representations and Warranties. Each of the parties to this Agreement makes the following representations and warranties to the other party: (a) The persons who have executed this Agreement have been authorized to do so by the party on whose behalf the party is signing. All documents to be delivered under this Agreement will be executed by an authorized person. Each party has a good and legal right to enter into this Agreement and to perform all covenants of that party contained in this Agreement. (b) None of the warranties, representations, or statements made by any party in this Agreement contain any untrue statements of material fact or omit a material fact necessary in order to make the statements not misleading. All representations and warranties of any party shall be true on and as of the Closing Date with the same force as though made on and as of the Closing Date. Section 21. Time of Essence. Time is of the essence in the performance of this Agreement. Section 22. Default. (a) Optionor's Remedies For Failure to Consummate the Option. If Optionee fails to deliver to the Title Company in a timely manner the amount specified in Section 4(b), or fails to perform in a timely manner any obligation required to be performed by Optionee for the timely Consummation of the Option pursuant to Section 10, this Agreement and the rights of Optionee under this Agreement shall automatically and immediately terminate without notice, Optionor shall retain all amounts paid pursuant to Section 4(a), and, except for any damages or injuries to the Property caused by Optionee or Optionee's agents the recourse for which Optionor reserves regardless of anything to the contrary in this Agreement, each party shall fully release and discharge the other party and the other party's representatives, successors, assigns, and heirs from all claims, demands, actions, debts, controversies, liabilities, and damages, including without limitation, those arising out of or relating to the releasing party's rights under this Agreement; each party further agrees never to commence, aid, prosecute, or cause to be commenced or prosecuted against the other party or the other party's agents, representatives, successors, assigns, or heirs any action or proceeding based directly or indirectly on any of the previous matters; each party further agrees to defend, indemnify, and hold the other party and the other party's agents, representatives, successors, assigns, and heirs harmless against all claims, demands, actions, debts, controversies, liabilities, and damages, including court costs and attorney fees, arising from or related to any action or proceeding brought by or prosecuted by or on behalf of the indemnifying party contrary to this Agreement. Each party agrees that this is a general release and expressly waives Civil Code § 1542, which provides: A general release does not extend to claims which the creditor does not know or expect 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. IRV 922743 v1 -9- 0 • (b) Optionor's Remedies Generally. Except for a failure by Optionee to perform in a timely manner under Sections 4(b) or 10, the remedy for which is provided in Section 26(a), if Optionee fails to pay or perform in a timely manner any other payment, duty, or obligation under this Agreement, Optionor shall be entitled to the remedies for breach of contract that are available under applicable law, including the remedy of specific performance, and this Agreement and the rights of Optionee shall automatically and immediately terminate on thirty (30) days' notice to Optionee. However, Optionee shall have the right to cure the default and reinstate Optionee's position under this Agreement if Optionee within the thirty (30) day period pays to Optionor the payments that Optionee has failed to make in accordance with this Agreement, plus any accrued interest in accordance with Section 24, or in the event of defaults not involving the nonpayment of money, Optionee commences and diligently and in good faith cures the default. (c) Optionee's Remedies. If Optionor fails to perform in a timely manner any obligation under this Agreement, Optionee shall be entitled to the remedies for breach of contract that are available under applicable law, including without limitation, the remedy of specific performance. Section 23. Quitclaims. Contemporaneously with the execution of this Agreement, Optionee shall execute in recordable form and deliver to the Title Company the quitclaim deed covering the Property along with escrow instructions in the form of attached Exhibits E and F, respectively. On termination of this Agreement, the quitclaim deed shall be delivered to Optionor. Section 24. Transfer. No transfer of Optionee's rights under the Agreement shall be made without the prior written consent of Optionor, which shall not be unreasonably withheld. In approving or disapproving this transfer, Optionor shall review the financial capability and development expertise of the proposed transferee. Optionee will provide Optionor with financial statements and information in reasonable detail for any party to whom Optionce intends to transfer Optionee's interest. Optionor shall not be deemed to withhold consent to a transfer unreasonably if the proposed transferee has less financial capability or has less development expertise than Optionee. Optionee may transfer Optionee's rights under the Agreement to another entity without Optionor's written consent, provided .Optionee remains fully responsible for development of the Property and fully liable for all duties and obligations required of Optionee under this Agreement. Optionee shall notify Optionor in writing of any transfer, providing the identity of the transferee and the details of the transfer. Section 25. Notices. All notices, demands, requests, exercises, and other communications under this Agreement shall be in writing and: IRV H22743 A _10_ 0 • (a) sent by United States Certified Mail, return receipt requested, in which case notice shall be deemed delivered three (3) business days after deposit, postage prepaid in the United States Mail, or (b) sent by a nationally recognized overnight courier, in which case notice shall be deemed delivered one (1)business day after deposit with that courier, or (c) sent by telecopy or similar means if a copy of the notice is also sent by United States Certified Mail, in which case notice shall be deemed delivered on transmittal by telecopier or other similar means, provided that a transmission report is generated by reflecting the accurate transmission of the notices, as follows: If to Agency: Community Redevelopment Agency of the City of Palm Springs P.O. Box 2743 Palm Springs, California 92263-2743 3200 Tahquitz Canyon Way Palm Springs, California 92262 Attn: Executive Director With a copy to: Burke, Williams & Sorensen, LLP 18301 Von Karman Avenue, Suite 1050 Irvine, California 92612 Attn: David J. Aleshire, Esq. If to Developer: Burnett Development Company 1300 Bristol Street North, Suite 200 Newport Beach, California 92660 Attn: Lynn Burnett With a copy to: Nossaman, Gunther, Knox&Elliott, LLP 18101 Von Karman Avenue, Suite 1800 Irvine, California 92612-0177 Attn: David L. Colgan, Esq. These addresses may be changed by written notice to the other party, provided that no notice of a change of address shall be effective until actual receipt of that notice. Copies of notices are for informational purposes only, and a failure to give or receive copies of any notice shall not be deemed a failure to give notice. Section 26. Waiver. Failure of either party at any time to require performance of any provision of this Agreement shall not limit that party's right to enforce the provision. Waiver of any breach of a provision shall not be a waiver of any succeeding breach of the provision or a waiver of the provision itself or of any other provision. IRV 922743 vI -11- Section 27. Litigation Costs. If any legal action or any other proceeding, including arbitration or an action for declaratory relief, is brought for the enforcement of this Agreement or because of an alleged dispute, breach, default, or misrepresentation in connection with any provision of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in that action or proceeding, in addition to any other relief to which the prevailing party may be entitled. Prevailing party shall include without limitation: (a) a party who dismisses an action in exchange for sums allegedly due; (b) a party who receives performance from another party of an alleged breach of covenant or a desired remedy where the remedy is substantially equal to the relief sought in an action; or (c) the party determined to be the prevailing party by a court of law. Section 28. Integration. This Agreement contains the entire agreement between the parties respecting the matter set forth, and expressly supersedes all previous or contemporaneous agreements, understandings, representations, or statements between the parties respecting this matter. Section 29. Survival of Covenants. Any covenants and agreements that this Agreement does not require to be fully performed prior to the Closing Date shall survive the Closing Date and shall be fully enforceable after the Closing Date in accordance with their terms. Section 30. Brokers. Each party will defend, indemnify, and hold the other party harmless from any claim, loss, or liability made or imposed by any other party claiming a commission or fee in connection with this transaction and arising out of that party's own conduct. Section 31. Changes in Writing. This Agreement and any of its terns may be changed, waived, discharged, or terminated only by a written instrument signed by the party against whom enforcement of the change, waiver, discharge, or termination is sought. Section 32. Indemnified Parties. Any indemnification contained in this Agreement for the benefit of a party shall extend to the officers, employees, and agents of the party. IRV 822743 VI -12- Section 33. Counterparts. This Agreement may be executed simultaneously or in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. Section 34. Invalidity of Provisions. If any provision of this Agreement or any instrument to be delivered by Optionee at closing pursuant to this Agreement is declared invalid or is unenforceable for any reason, that provision shall be deleted from the document and shall not invalidate any other provision contained in the document. Section 35. Successors. This Agreement shall be binding on and inure to the benefit of the parties, and their respective heirs, personal representatives, successors, and assigns. Section 36. Third-Party Rights. Nothing in this Agreement, express or implied, is intended to confer on any person, other than the parties and their respective successors and assigns, any rights or remedies under or by reason of this Agreement. Section 37. Construction. Headings at the beginning of each section and subsection are solely for the convenience of the parties and are not a part of and shall not be used to interpret this Agreement. The singular form shall include plural and vice versa. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties have prepared it. Unless otherwise indicated, all references to Sections are to this Agreement. Section 38. Further Assurances. Whenever requested to do so by the other party, each party shall execute, acknowledge, and deliver all further conveyances, assignments, confirmations, satisfactions, releases, powers of attorney, instruments of further assurance, approvals, consents, and all further instruments and documents as may be necessary, expedient, or proper, in order to complete all conveyances, transfers, sales, and assignments under this Agreement, and to do all other acts and to execute, acknowledge, and deliver all documents as requested in order to carry out the intent and purpose of this Agreement. Section 39. Governing Law. This Agreement shall be governed and construed in accordance with California law. The parties have executed this Agreement as of the day and year first above written. IRV 822743 vI -13- IN WITNESS WHEREOF, Optioner and Optionee have caused this instrument to be executed on their behalf by their respective officers or agents hereunto as of the date first above written. OPTIONER: THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic Executive Dir- o� A EST: B ' -- 4o as Assistant Secretary / APPROVED AS TO FORM: BURKE, WILLIAMS & SORENSEN, LLP By: David-- . Aleshire, Agency Counsel OPTIONEE: BURNETT DEVELOPMENT CORPORATION, a California corporation ��1�C��n� l � THE -OrAEc+'�UV�i oyy U=.V.BY: l l ".> AGENCY BY ft - f~�®.LLL" �_I.1'p.:-,'' Its: f r � . 7" rr '� : BY: IC � s IRV#22743 vl -14- 0 r STATE OF CALIFORNIA ) ss. COUNTY OF RIVERSIDE ) On before me, a notary public, 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 acted, executed the instrument. WITNESS my hand and official seal. By: STATE OF CALIFORNIA ) 0 .q 09 /da E ) ss. COUNTY 0174UVE ME ) On /?u G tr,,57 F, .2 U© before me notary public, personally appeared L. /—. ,!g U .Z/V,9 7 77 pn`s s .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 salve in his/hef authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. / By: UNDAM.WIWAIVS -_ Gommmon i9 1799175' -- F` NotaryP" -Ccliioan3a ;1 Fh�Cc;rm.C :=:��� IRV#22743 vI -15- zAa) ofcall-riornl'a Bill Jones Secrentary of State Z TATE'NEENT 3Y 00MES71C STOCK CORPO RAT�C*N A DO NOT ALTER-9EPRINTEDNANIE. IF TEi\,I I IS BLANK,PLEASE ENTER CORPORATE NAME AND NUMBER. C1864807 BURNETT DEVELOPMENT CORPORATION 1300 Bristol Bristol EStreet Nort!h, SuFite200 Newport Beach, CA 92660 This Space For FiAnq Use Only IN Tt" &F IN", Cc a 2. STREET ADDRESS OF PRINCIPAL EXECUTIVE OFFICE CITY AND STATE ZIP CODE 1300 Bristol Street North, Ste. 200 , Newport Beach, CA 92660 3. STREET ADDRESS OF PRINCIPAL BUSINESS OFFICE IN CALIFORNIA,IF ANY CITY ZIP CODE Same CA 4. MAILING ADDRESS CITY AND STATE ZIP CODE Same 'e' D -�Tb ca fib�A�Stt-- these tfirp 7 T ff; ay -6 A 1- br � -Iq'q TTkpgaa -aC 'CHIEF EXECUTIVE OFFICER/ ADDRESS CITY AND STATE ZIP CODE C.L. Burnett 1300 Bristol St. No. , #200 , Newport Beach, CA 92660 6. SECRETARY/ ADDRESS CITY AND STATE ZIP CODE C.L. Burnett 1300 Bristol St. No. , #200 , Newport Beach, CA 92660 7 CHIEF FINANCIAL OFFICER/ ADDRESS CITY AND STATE ZIP CODE C.L. Burnett 1300 Bristol St. No. , #200 , Newport Beach, CA 92660 LiST71HE 5 8. NAME ADDRESS CITY AND STATE ZIP CODE C. L. Burnett 2115 Bayside Drive, Corona del Mar, CA 92625 9. NAME ADDRESS CITY AND STATE ZIP CODE 10. NAME ADDRESS CITY AND STATE ZIP CODE 11. NUMBER OF VACANCIES ON THE BOARD OF DIRECTORS,IF ANY: 12. CHECK THE APPROPRIATE PROVISION BELOW AND NAME THE AGENT FOR SERVICE OF PROCESS: XXAN INDIVIDUAL RESIDING IN CALIFORNIA. [ I A CORPORATION WHICH HAS FILED A CERTIFICATE PURSUANT TO SECTION 1505 OF THE CALIFORNIA CORPORATIONS CODE. AGENT'S NANIE- C. Lynn Burnett 13. ADDRESS OF THE AGENT FOR SERVICE OF PROCESS IN CALIFORNIA,IF AN INDIVIDUAL. CITY ZIP CODE 1300 Bristol Street North, Ste. 200 , NewTport Beach, CA 92660 14 DESCRIBE THE TYPE OF BUSINESS OF THE CORPORATION Real Estate Development 5. 1 DECLARE THAT I HAVE EXAMINED THIS STATEMENT AND TO THE BEST OF MY KNOWLEDGE AND BELIEF,IT IS TRUE,CORRECT AND COMPLETE. C. Lynn Burnett President Pre 11/01/01 TYPE OR PRINT NAME OFS[CNING OFFICER OR AGENT ORIGINAL SIGNATURE TITLE DATE SO-20ON/C(REV I V99) Approved by Secretary of State