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HomeMy WebLinkAbout00439C - GEIGER LLC SHOPPING CENTER RAMON GENE AUTRY Geiger LLC Ramon/Gene Autry Shop. Ctr. Amendment 2 AGREEMENT #0439C SECOND AMENDED AND RESTATED Res 1238, 3 17-04 EXCLUSIVE AGREEMENT TO NEGOTIATE WITH GEIGER, LLC FOR THE DEVELOPMENT OF A SHOPPING CENTER THIS SECOND AMENDED AND RESTATED EXCLUSIVE AGREEMENT TO NEGOTIATE ("Agreement') is made this 17`h day of March, 2004, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS ("Agency") and GEIGER, LLC ("Developer"). RECITALS The parties enter into this Agreement on the basis of the following facts, understandings, and intentions: A. The 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 Sections 33000, et seq.). B. The Agency desires to effectuate the Redevelopment Plan for Redevelopment Project Area No. 4, now a part of Merged Project Area#1, by providing for the development of a regional retail shopping center featuring a "big box" retail user within a portion of the approximately 38-acre vacant property at the northeast corner of Gene Autry Trail and Ramon Road ("Shopping Center") in the City of Palm Springs, California("City"). C. The Developer is experienced in shopping center development and remediating sites subject to environmental contamination and has dealt with the major tenants who might occupy the Shopping Center. D. On April 14, 2002, and on April 17, 2003, Developer and Agency executed the "Exclusive Agreement to Negotiate" and "Amended & Restated Exclusive Agreement to Negotiate", respectively ("Prior Agreements"). During the period of the Prior Agreements, the Developer prepared a Remedial Action Workplan (RAW) with adequate environmental review of the site conditions, including prior soil contamination issues creating significant remediation costs, and submitted the plan to the Riverside County Department of Environmental Health (the Local Enforcement Agency for the California Integrated Waste Management Board) and the California Department of Toxic Substances Control ("DTSC"), which became the lead agency for the project. On January 20, 2004, the 30-day comment period for public review of the Plan under the auspices of DTSC closed, and on March 4, 2004 DTSC issued to the Developer a Notice to Proceed with the remediation activity under DTSC oversight and authority (California Health& Safety Code § 33459.1(a)(1)). E. The Developer completed the remediation approval process in or about March 2004. Pursuant to the Prior Agreements, Developer has submitted development plans for the Shopping Center to the City, the City, has retained Dudek and Associates as the consultant to prepare the Environmental Impact Report ("EIR") for the Shopping Center, and the Agency has completed an appraisal of the Shopping Center Site. All the parties believe that an additional 0-PJ CBE=SAL Coil AND/OR, A1(3Rr&7,'WJENT 01003/0035132124,07 due diligence period is necessary before a Disposition and Development Agreement that would lead to the purchase of the Shopping Center Site may be negotiated and executed. F. The Agency and Developer desire, for the period set forth herein, to continue negotiating diligently in and in good faith to prepare a disposition and development agreement ("DDA") whereby the Developer would develop the Shopping Center Site as a major regional power center. NOW, THEREFORE, and in consideration of the mutual covenants contained herein, parties mutually agree to the following: SECTION 1. NATURE OF NEGOTIATIONS. A. Good Faith. The Agency and the Developer agree that, for the period set forth in Section 2 herein, they will negotiate diligently and in good faith to prepare and enter into a DDA that is consistent with the provisions of this Agreement for the development of the Shopping Center ("Project") on the "Site" specified in Section I.B. hereof. The Project will be subject to all rules, regulations, standards, and criteria set forth in the Agency's Redevelopment Plan, the City's General Plan, applicable specific plans and zoning regulations, and this Agreement. The DDA will generally be in the form negotiated by the Agency with other development entities subject to the terms the Agency and Developer mutually agree upon. B. Site. The Project shall be located upon all or a portion of the real property designated as the "Shopping Center" or the "Site", as shown in the "Site Map," attached hereto as Exhibit "A" and incorporated herein by this reference. The Site is divided into two ownerships, herein designated as the "Agency Parcel" and the "Developer Parcel" to which Developer currently owns the fee interest. It is anticipated that the Project will be developed in phases. There is a five (5) foot strip on the Site which is located in the City of Cathedral City("Cathedral City Property"). Developer acquired the Cathedral City Property in 2003, and is addressing access and encroachment issues concerning the Property. C. Nature of Shopping Center and Ownership. The parties intend that pursuant to the DDA, the Developer will acquire a fee interest in the Agency Parcel for purposes of developing the Shopping Center on the entire Site. The design of the Project shall be consistent with the Agency and City's duly adopted design guidelines. Developer shall also obtain architectural review for the Project from the City's Design Review Board. The Developer is solely responsible for obtaining all approvals and entitlements for the Project, arranging the financing for the Project, and constructing all improvements upon the Site. The Shopping Center shall be a "power center" with a major tenant big box retailer occupying at least 100,000 square feet, as well as ancillary retail tenants to include uses such as general merchandise, food, theaters, home improvement, clothing, electronics, sports, restaurants, and similar uses. hi the event that, after diligent good faith efforts, the Developer cannot obtain a commitment from a big box user such as Home Depot, Costeo or a similar user, Developer may propose alternative smaller major tenants in a mixed retail use designed 2 01003/0035/32124.07 to produce significant sales tax. It is anticipated that the construction cost of the Project will exceed $8,000,000. D. Soils. The Agency has disclosed all information it has concerning the condition of the soils on the Site, which soils contain contamination and require remediation. Developer agrees to acquire the Agency Parcel in an "as is" condition such that Agency shall and will not retain liability for any soils conditions on the Site following the sale of the Agency Parcel and the remediation of the Site. It shall be the sole obligation of the Developer to investigate the Site and develop a remediation plan which can be implemented by Developer within the Project economics. Agency may apply for financial assistance from the state or federal government to assist Developer with the remediation of the contaminated portion of the Site, but it shall be the Developer's responsibility to finance and undertake the remediation of the Site. The Agency and Developer, together with the County of Riverside Department of Environmental Health, have determined that a "partial clean closure" of the Site may be the most practical approach, and that California Health & Safety Code § 33459.1 (a)(1) allows redevelopment agencies to "take any actions that the agency determines are necessary and that are consistent with other state and federal laws to remedy or remove a release of hazardous substances on, under, or from property within a project area, whether the agency owns that property or not," thereby creating additional authority to clean the Site, which the Agency may utilize to assist Developer in accomplishing the remediation. Developer acknowledges that the Agency will not have any obligation to utilize any public resources except those it may receive from the state or federal government for the specific purpose of remediating the Site. Developer will investigate and determine if it will decline to acquire the Agency Parcel should Developer be unable to adequately mitigate any contamination requiring remediation prior to the expiration of this Agreement. The Project shall be planned to take advantage of the immunity provisions of the California Polanco Redevelopment Act ("Polanco"), Health & Safety Code §33459.01, et seq. Polanco provides broad immunity from further cleanup work in connection with release(s) properly addressed through an approved cleanup plan: I. The immunity in Health & Safety Code § 33459.3 encompasses cleanup liability arising under the Water Code, and California's RCRA, underground tank, and superfund programs, as well as "any other state or local law providing liability for remedial or removal actions for releases of hazardous substances." (Health & Safety Code § 33459.3(a).) 2. It protects the redevelopment agency, redevelopers of contaminated property, successors in title to either of the foregoing, and their financiers. (Health & Safety Code § 33459.3(e).) 3 01003/0035/32124.07 E. Additional Environmental Considerations. Developer's geological and geotechnical engineering report has concluded that the Project is geotechnically feasible, provided that the recommendations contained in the report are incorporated into the final design and construction phase of the proposed structure. The parties acknowledge that Developer may revise the geological and geotechnical reports. Develop�i has peifurnied a ccn.gIet%,Jtaffi;,_study—for th6---site-which -mucluded that the area roadways will generally continue to operate at acceptable levels. *tIU . F. Financial Provisions. Developer currently owns the Developer creel. Developer shall acquire a fee interest in the Agency Parcel at a price to be agreed upon by the parties with the actual net usable square footage determined through survey and with an offset for remediation costs. The parties further agree to the following: 1. Developer shall be responsible for funding the cost of any condemnation action, if necessary. 2. Developer shall be responsible for financing and constructing all improvements. 3. Developer shall pay for all necessary public improvements and pay all of City's fees incurred in processing the Project, without assistance from the Agency. 4. Nothing in this agreement shall be construed to be contrary to the provisions of Health & Safety Code Section 33426.5, which states: "Notwithstanding the provisions of Sections 33391, 33430, 33433, and 33445, or any other provision of this part, an agency shall not provide any form of direct assistance to: (b) (1) A development that will be or is on a parcel of land of five acres or more which has not previously been developed for urban use and that will, when developed, generate sales or use tax pursuant to Part 1.5 (commencing with Section 7200) of Division 2 of the Revenue and Taxation Code, unless the principal permitted use of the development is office, hotel, manufacturing, or industrial, or unless, prior to the effective date of the act that adds this section, the agency either owns the land or has entered into an enforceable agreement, for the purchase of the land or of an interest in the land, including, but not limited to, a lease or an agreement containing covenants affecting real property, that requires the land to be developed. (2) For the purposes of this subdivision, a parcel shall include land on an adjacent or nearby parcel on which a use exists that is necessary for the legal development of the parcel. 4 01003/0035/32124.07 (e) This section shall not be construed to apply to agency assistance in the constriction of public improvements that serve all or a portion of a project area and that are not required to be constructed as a condition of approval of a development described in subdivision (a), (b), or (c), or to prohibit assistance in the construction of public improvements that are being constructed for a development that is not described in subdivision (a), (b), or (c) 11 5. Developer shall be responsible for all soils remediation costs for the Site. 6. The current projected remediation cost is $6,000,000 to $8,500,000. 7. The remediation offset shall not exceed the value of the property conveyed. 8. The Agency shall not provide financial assistance to the Project. The remediation offset shall not be considered financial assistance. G. Schedule. The goal will be to develop the Shopping Center for opening by the First Quarter of 2006, with an understanding that the opening of the Project may be phased. A Schedule of Performance during the term of this Agreement is attached hereto as Exhibit `B" and is incorporated herein by this reference. The DDA shall also contain a Schedule of Performance. Due to the need to possibly acquire certain parcels through condemnation or environmental enforcement actions under the Polanco Redevelopment Act title to the parcels may be delivered in phases upon mutually agreeable terms. H. Use, Transfer, and Maintenance Restrictions. The DDA will generally be subject to restrictions on use and transfer during construction (i) to assure that the use will be consistent with and promote the Redevelopment Plan, (ii) to protect the character of the Project and to provide an adequate long-term financial return, (iii) to prevent speculation, and (iv) to assure that any transferee has the resources, capability, and experience to successfully operate the Shopping Center. In addition, restrictions shall be recorded to assure proper maintenance of landscaping and improvements. I. Property Acquisition. To the extent permitted by law, the DDA will contain provisions that the Agency may consider the use of its power of eminent domain for site assemblage should voluntary negotiations be unsuccessful. 5 01003/0035132124.07 SECTION 2. PERIOD OF NEGOTIATIONS A. Period of Exclusive Negotiation. The period of negotiation shall be three (3) years from the date of this Agreement, except as otherwise provided herein (the "Term"). B. Early Termination. The Agency may terminate the Agreement if, within twelve (12) months from the date hereof, Developer fails to submit a completed project application and the materials necessary for the City to begin circulation of the Project's Draft EIR for comment. C. Extension of Time Agreement. This Agreement may be extended as follows: 1. For sixty (60) days, if within the Tenn a DDA has been prepared by the Agency and executed by the Developer and has been submitted to the Agency but has not yet been approved by the Agency's Board of Directors; or 2. For thirty (30) days if within the Tenn the parties have agreed on the major business terns and the Executive Director of the Agency reasonably determines that further negotiations are likely to result in a DDA; or 3. By mutual agreement of the parties, as evidenced in writing. D. Agency Approval. Developer understands and acknowledges that if negotiations culminate in a DDA, such DDA shall be effective only after and if the agreement has been considered and approved by the Agency Board after public hearing thereon as required by law. SECTION 3. SECTION 3. DEVELOPER'S RESPONSIBILITIES. During the period of negotiation, Developer will prepare such studies, reports, and analysis as shall be necessary to permit Developer to determine the feasibility of the Project. During the period of negotiation, and as requested by the Agency, the Developer shall submit to the Agency the following: A. Full disclosure of Developer's principals, partners, joint venturers, negotiators, consultants, professional employees, or other associates of the Developer who are participants or principals of the Project, and all other relevant information concerning the above. B. Statement of financial condition in sufficient detail to demonstrate Developer's financial capabilities, those of its principals, partners,joint ventures, and those of its prospective developers to satisfy the commitments necessitated by the Project, including all information necessary to demonstrate the availability of construction and permanent financing. 6 01003/0035/32124.07 To the extent Developer wants such financial statements to remain confidential, they shall be supplied to and maintained by the Agency in confidence to the extent permitted by law. C. All information necessary for the design of the Project to meet the Agency's reasonable requirements. This information shall be sufficient to allow Agency to evaluate site configuration, architectural design and similar issues. D. All Information necessary to show tenant availability and interest, the nature of the proposed tenants, and the financial strength and resources of the tenants. To the extent Developer wants such information to remain confidential, they shall be supplied to the Agency only if confidentiality can be maintained. E. The Developer shall negotiate exclusively with the Agency's negotiating team and with no other persons unless expressly authorized to do so by the Agency's negotiating team. During the period of negotiations, no statements will be made by the Developer or Agency to the media without the approval of the Agency's negotiating team. No prepared statements shall be released to the media without the mutual consent of the respective negotiating teams. SECTION 4. SECTION 4. AGENCY'S RESPONSIBILITIES. A. Agency Assistance. The Agency shall cooperate fully in providing Developer with appropriate information and assistance, but such assistance shall not include financial assistance unless specifically provided herein. B. Preparation of Agreement. If agreement is reached on the business terms for inclusion in the DDA, the Agency shall prepare such DDA for consideration by the Developer. Agency's expenses incurred in connection with the preparation of the DDA shall be absorbed by Agency. C. California Environmental Quality Act. The Agency will assist Developer to the fullest extent possible in preparing any necessary environmental documentation for the Project. SECTION 5. SECTION 5. MISCELLANEOUS. A. No Commissions. The Agency shall not be liable for any real estate commission or any broker's fees which may arise in relation to the Project. The Agency represents that it has engaged no broker, agent, or finder in connection with this transaction, and the Developer agrees to hold the Agency harmless from any claim by any broker, agent, or finder retained by the Developer. B. Ownership of Documents. If the negotiations contemplated by this Agreement do not result in the execution of an agreement, Developer acknowledges that all reports, studies, analysis, site plan layouts, engineering studies, memorandums, or similar documents regarding the proposed development which were prepared during the period of negotiations (except tenant and financial information and proformas), which have been 7 01003/0035/32124.07 submitted to the Agency, the City, the County of Riverside, or any other governmental agency are public documents and will not be kept confidential. C. Purpose of Contract. It is expressly understood and agreed by the parties that this is an Agreement regarding the conduct of contract negotiations only and does not convey any interest in the Site whatsoever. It is further agreed and understood that this Agreement does not imply any obligation on the part of either party to enter into any agreement that may result from the negotiations contemplated herein. A. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such parry is formally bound to the provisions of this Agreement, and (iv) entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. 8 01003/0035/32124.07 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day first above written. "AGENCY" COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic y.. Executive Dirct e or ATTEST: C ha i rmA n �v AV�4zgqC�'}c�"+[y(3^�iyi ti����vn��534����� t. CS-,"�i� Yif [wlL�id. eney Assistant Secretary -- ' `_�• 1,'""'I� ' APPROY D AS TO FORM: Age�cy Counsel 9 01003/0035/32124.07 "DEVELOPER" GEIGER, C By: I . Signature Print Name: ` ^ C°��� tLk G Print Title: By: Signature Print Name: Print Title: Mailing Address: 1888 Century Park East, 4th Floor Century City, CA 90067 Attn: (All Signatures must be notarized.) 10 01003/0035/32124.07 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No,5907 State of County ofOn 13, before me, 4 �2 911 DATE / NAM TLE OFFI E.G "JANE DOE,NOTARY PUBLIC" personally appeared �/�_� e-e-- v NAME(S)OF SIGNER(S) personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(�id_whose name( is/ate subscribed to the within instrument and ac- knowledged to me that he/s�executed the same in his/#e44#e­k authorized capacity(iesj, and that by hisk!=H hoir E l si nature(/s�,,� on the instrument the erson ery)\ P.EV�:r.LEY J.JOHNSON g V"�- p (�/r �commisslDn#1299977 z or the entity upon behalf of which the NoiyPum;o-carromta person(s) acted, executed the instrument. I-os Angeles GOunty roy cor nm.Expires Apr 7,2005 WITN SS my hand and offici sal. �GG(� 31 ATUREO FARY t OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOC MENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER ��� TITLES) Q 1 LE O�DOCUMENT �PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT NUMBER OF PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR / ❑ OTHER: L7L DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME PERSON(S)OR NTITY(IFES) u 2 _lDfff� —!. l✓y i/O� SIGNER(S) OTHER THAN NAMED ABOVE ©1993 NATIONAL NOTARY ASSOCIATION-8236 Remmet Ave.,P O.Box 7184-Canoga Park,CA 91 309-71 84 r EXHIBIT A SITE MAP IrNart J IMffor Y. N.r�• P j1 :l i 1• ' t 11 I� F DEVELOPER PARCEL 27.0T AC NEi 1 t� I039611 SO rt j I _ 1 wLf I .••� r r••.N •f r./• � w AGENCY PARCEL 1 AGENCY PARCEL 2 6.22 AC, HET t 1 ; . 358105-SO rL I2 i_ 5.32 AC NEi w«.0 11• I Q 234715 SO. r1 1 l .•TN .�! vw I /i•"N •iYH•f � 1 NI • l• , `� I I•f N � M r RAM N _•192�._ _ .. .t / . Exhibit `B" SCHEDULE OF PERFORMANCE O1/30/04 Applicant provides revised site plan and project description 02/04/04 Applicant provides revised grading plan 03/04/04 Applicant provides site remediation program approved by DTSC 05/16/05 Project Traffic Engineer provides revised traffic study 05/23/05 City Engineer completes review of traffic study 05/23/05 EIR Consultant(Dudek)provides air quality and noise studies 05/31/05 City completes review of air and noise studies 06/07/05 Dudek provides Draft EIR screen check draft to city 06/13/05 City returns Draft EIR comments to Dudek 06/27/05 Dudek provides Second Screencheck EIR to City Hall 07/05/05 City completes review of Second Screencheck EIR 07/11/05 Dudek publishes Draft EIR, mails to state clearinghouse (45 days) 07/11/05 Applicant submits building plans (at risk) for concurrent plan check 08/25/05 CEQA 45 day review period of Draft EIR closes 09/08/05 Dudek to provide Final EIR screen check draft to city 09/22/05 City returns Final EIR comments to Dudek 09/22/05 Applicant submits precise grading plans(at risk) for concurrent plan check 09/29/05 Dudek publishes Final EIR, mails to state clearinghouse (10 days) 10/12/05 Planning Commission Public Hearing 10/19/05 City Council Public Hearing 10/19/05 Agency approves the Disposition and Development Agreement 10/20/05 Notice of Determination filed with Riverside County Clerk(30 days) 10/21/05 Applicant pulls building permits 11/19/05 End of NOD 30 day review period �J Geiger, LLC Ramon/Gene Autry Shop Ctr AGREEMENT #439C Amend 1 R1212, 4-16-03 AMENDED AND RESTATED EXCLUSIVE AGREEMENT TO NEGOTIATE WITH GEIGER, LLC FOR THE DEVELOPMENT OF A SHOPPING CENTER THIS AMENDED ANEST ED EX LUSIVE AGREEMENT TO NEGOTIATE ("Agreement") is made this ay of 2003, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE ITY OF PALM SPRINGS ("Agency") and GEIGER, LLC ("Developer"). RECITALS The parties enter into this Agreement on the basis of the following facts, understandings, and intentions: A. The 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 Sections 33000, et seq.). B. The Agency desires to effectuate the Redevelopment Plan for Redevelopment Project Area No. 4, now a part of Merged Project Area#1, by providing for the development of a regional retail shopping center featuring a big box retail user within a portion of the approximately 38-acre vacant property at the northeast corner of Gene Autry Trail and Ramon Road ("Shopping Center") in the City of Palm Springs, California ("City"). C. The Developer is experienced in shopping center development and remediating sites subject to environmental contamination and has dealt with the major tenants who might occupy the Shopping Center. D. On April 4, 2002, Developer and Agency executed the "Exclusive Agreement to Negotiate" ("Prior Agreement"). However, despite the parties best efforts, due to various uncertainties, including the need to develop a land use plan with adequate environmental review and conditions of the site, including prior soil contamination issues creating significant remediation costs, the parties believe that an additional due diligence period is necessary before a purchase agreement for the Shopping Center Site may be negotiated and executed. E, It is anticipated that Developer will complete the remediation approval process in or about July 2003. Pursuant to the Prior Agreement, Developer has submitted development plans for the Shopping Center to the City, the City is currently receiving proposals for a consultant to prepare the Environmental Impact Report ("EIR") for the Shopping Center, and the Agency has completed an appraisal of the Shopping Center Site. F. The Agency and Developer desire, for the period set forth herein, to continue negotiating diligently in and in good faith to prepare an agreement("DDA")whereby the Developer would develop the Shopping Center Site as a major regional power center. NOW, THEREFORE, and in consideration of the mutual covenants contained herein, parties mutually agree to the following: 0'R1(34 4P,L G"ird 15126 A SECTION 1. NATURE OF NEGOTIATIONS. A. Good Faith. The Agency and the Developer agree that, for the period set forth in Section 2 herein, they will negotiate diligently and in good faith to prepare and enter into a DDA that is consistent with the provisions of this Agreement for the development of the Shopping Center ("Project") on the "Site" specified in Section I.B. hereof. The development will be subject to all rules, regulations, standards, and criteria set forth in the Agency's Redevelopment Plan, the City's General Plan, applicable specific plans and zoning regulations, and this Agreement. The DDA will generally be in the form negotiated by the Agency with other development entities subject to the terms the Agency and Developer mutually agree upon. B. Site. The Project shall be located upon all or a portion of the real property designated as the "Shopping Center" or the "Site", as shown in the "Site Map," attached hereto as Exhibit "A" and incorporated herein by this reference. The Site is divided into two ownerships, herein designated as the "Agency Parcel" and the "Epsteen Parcel". The Project may ultimately include only a portion of the Epsteen Parcel. It is anticipated that the Project will be developed in phases. The Developer is in escrow on its purchase of the Epsteen Parcel. The escrow is anticipated to close in September of 2003. C. Nature of Shopping Center and Ownership. Pursuant to the DDA, the Developer must acquire a fee interest in the Site. The design of the Project shall be consistent with the Agency and City's design guidelines. Developer shall also obtain architectural review for the Project from the City's Design Review Board. The Developer is solely responsible for obtaining all approvals and entitlements for the Project, arranging the financing for the Project, and constructing all improvements upon the Site. The Shopping Center shall be a "power center" with a major tenant big box retailer occupying at least 100,000 square feet, as well as ancillary retail tenants to include uses such as general merchandise, food, theaters, home improvement, clothing, electronics, sports, restaurants, and similar uses. In the event that, after diligent good faith efforts, the Developer cannot obtain a commitment from a big box user such as Wal-Mart, Home Depot, Costco or a similar user, Developer may propose alternative smaller major tenants in a mixed retail use designed to produce significant sales tax. It is anticipated that the construction cost of the Project will exceed $8,000,000. D. Soils. The Agency has disclosed all information it has concerning the condition of the soils on the Site, which soils contain contamination and require remediation. Developer agrees to acquire the Site in an "as is" condition such that Agency shall and will not retain liability for any soils conditions on the Site following the remediation and sale of the Site. It shall be the sole obligation of the Developer to investigate the Site and develop a remediation plan which can be implemented by Developer within the Project economics; nonetheless, the remediation plan is subject to approval by the Agency, which approval shall not be unreasonably withheld. Agency may apply for financial assistance from the state or federal government to assist Developer with the remediation of the contaminated portion of the Site, but it shall be the Developer's responsibility to finance and undertake the remediation of the Site. The Agency and Developer, together with the County of Riverside Department of Environmental Health, have determined that a "partial clean closure" of the Site may be the most practical approach, 15126 A 2 and that California Health & Safety Code § 33459.1 (a)(1) allows redevelopment agencies to "take any actions that the agency determines are necessary and that are consistent with other state and federal laws to remedy or remove a release of hazardous substances on, under, or from property within a project area, whether the agency owns that property or not," thereby creating additional authority to clean the Site, which the Agency may utilize to assist Developer in accomplishing the remediation. Developer acknowledges that the Agency will not have any obligation to utilize any public resources except those it may receive from the state or federal government for the specific purpose of remediating the Site. Developer will investigate and determine if it will decline to acquire any portion of the Site which cannot be adequately mitigated, prior to the expiration of this Agreement. Developer has prepared a Remedial Action Plan ("RAP") which has been submitted to the County of Riverside Health Services Agency("County") as the lead agency for the Site's remediation and the California Department of Toxic Substances Control. Developer will obtain all necessary permits from the County. The Project shall be planned to take advantage of the immunity provisions of the Polanco Redevelopment Act, Health & Safety Code §33459.01, et seq. E. Additional Environmental Considerations. Developer's geological and geotechnical engineering report has concluded that the Project is geotechnical feasible, provided that the recommendations contained in the report are incorporated into the final design and construction phase of the proposed structure. The parties acknowledge that Developer's may revise the geological and geotechnical reports. Developer has performed a complete traffic study for the site which concluded that the area roadways will generally continued to operate at acceptable levels. F. Financial Provisions. Developer shall acquire a fee interest in all or a portion of the Site at a price to be agreed upon by the parties with the actual net usable square footage determined through survey and with an offset for remediation costs. The parties further agree to the following: 1. Developer will have the option to acquire the Site for$1,000,000. Developer will assign this option to the Agency pursuant to a separate agreement. 2. Developer shall be responsible for funding the cost of any condemnation action. 3. Developer shall be responsible for financing and constructing all improvements. 4. Developer shall pay for all necessary public improvements and pay all of City's fees incurred in processing the Project, without assistance from the Agency. 5. Nothing in this agreement shall be construed to be contrary to the provisions of Health & Safety Code Section 33426.5, which states: "Notwithstanding the provisions of Sections 33391, 33430, 33433, and 33445, or any other provision of this part, an agency shall not provide any form of direct assistance to: 15126 va 3 (b) (1)A development that will be or is on a parcel of land of five acres or more which has not previously been developed for urban use and that will, when developed, generate sales or use tax pursuant to Part 1.5 (commencing with Section 7200) of Division 2 of the Revenue and Taxation Code, unless the principal permitted use of the development is office, hotel, manufacturing, or industrial, or unless, prior to the effective date of the act that adds this section, the agency either owns the land or has entered into an enforceable agreement, for the purchase of the land or of an interest in the land, including, but not limited to, a lease or an agreement containing covenants affecting real property, that requires the land to be developed. (2) For the purposes of this subdivision, a parcel shall include land on an adjacent or nearby parcel on which a use exists that is necessary for the legal development of the parcel. (e) This section shall not be construed to apply to agency assistance in the construction of public improvements that serve all or a portion of a project area and that are not required to be constructed as a condition of approval of a development described in subdivision (a), (b), or(c), or to prohibit assistance in the construction of public improvements that are being constructed for a development that is not described in subdivision (a), (b), or (c)." 6. Developer shall be responsible for all soils remediation costs for the Site. The current projected remediation cost is $6,000,000 to $8,000,000. The remediation costs for the Site must be approved by Agency(which approval shall not be unreasonably withheld) and shall offset the purchase price. 7. Developer's remediation costs for the Agency Parcel will be offset against the purchase price for the Agency Parcel. The purchase price for the Epsteen Parcel shall be $1,000,000.00. 8. The Agency agrees to sell the Site to Developer for fair market value, less the approved remediation costs, plus appropriate management and similar costs related to the remediation. The remediation offset shall not exceed the value of the property conveyed. 9. The Agency shall not provide financial assistance to the Project. The remediation offset shall not be considered financial assistance. G. Schedule. The goal will be to develop the Shopping Center for opening by the Third Quarter of 2005, with an understanding that the opening of the Project may be phased. A Schedule of Performance during the term of this Agreement is attached hereto as Exhibit "B" and is incorporated herein by this reference. The DDA shall also contain a Schedule of Performance. Due to the need to possibly acquire certain parcels through condemnation or environmental enforcement actions under the Polanco Redevelopment Act title to the parcels may be delivered in phases upon mutually agreeable terms. 15126 v8 4 H. Use, Transfer, and Maintenance Restrictions. The DDA will generally be subject to restrictions on use and transfer during construction and for a specified period thereafter(i)to assure that the use will be consistent with and promote the Redevelopment Plan, (ii) to protect the character of the Project and to provide an adequate long-term financial return, (iii) to prevent speculation, and (iv) to assure that any transferee has the resources, capability, and experience to successfully operate the Shopping Center. In addition, restrictions shall be recorded to assure proper maintenance of landscaping and improvements. I. Property Acquisition. To the extent permitted by law, the DDA will contain provisions that the Agency may consider the use of its power of eminent domain for site assemblage should voluntary negotiations be unsuccessful. There is a five (5) foot strip of the Site which is located in the City of Cathedral City ("Cathedral Property"). Developer is responsible for resolving issues concerning the Cathedral Property. SECTION 2. PERIOD OF NEGOTIATIONS A. Period of Exclusive Negotiation. The period of negotiation shall be one (1) year from the date this Agreement is signed by the Agency, except as otherwise provided herein (the "Term"). B. Early Termination. Within one hundred twenty (120) days from the date hereof, the parties shall meet and review the status of performance under this Agreement ("Review Meeting"). Within such period, Developer should have done the following: 1. Prepared a financial proforma for the construction of the Project which identifies the total number of square feet for the Project and the cost per square foot for the construction thereof. 2. Prepared a "Site Plan" specifying tenants contacted and those from whom commitments have been or will be obtained, as well as the minimum square footage per tenant. The Site Plan shall also describe the other pads to be constructed on the Site and specify the various uses of each pad. If the parties determine that the Project is not economically feasible, or if Agency finds Developer's progress with respect to the matters set forth in this Section B.I. and 2. unsatisfactory in its reasonable discretion, Agency may terminate this Agreement. C. Extension of Time Agreement. This Agreement may be extended as follows: 1. For sixty (60) days, if within the Term a DDA has been prepared by the Agency and executed by the Developer and has been submitted to the Agency but has not yet been approved by the Agency's Board of Directors; or 2. For thirty (30) days if within the Term the parties have agreed on the major business terms have been agreed to and the Executive Director of the Agency reasonably determines that further negotiations are likely to result in a DDA; or 3. By mutual agreement of the parties, as evidenced in writing. 15126 A 5 D. Agency Approval. Developer understands and acknowledges that if negotiations culminate in a DDA, such DDA shall be effective only after and if the agreement has been considered and approved by the Agency Board after public hearing thereon as required by law. SECTION 3. DEVELOPER'S RESPONSIBILITIES. During the period of negotiation, Developer will prepare such studies, reports, and analysis as shall be necessary to permit Developer to determine the feasibility of the Project. During the period of negotiation, and as requested by the Agency, the Developer shall submit to the Agency the following: A. Full disclosure of Developer's principals, partners,joint venturers, negotiators, consultants, professional employees, or other associates of the Developer who are participants or principals of the Project, and all other relevant information concerning the above. B. Statement of financial condition in sufficient detail to demonstrate Developer's financial capabilities, those of its principals, partners,joint ventures, and those of its prospective developers to satisfy the commitments necessitated by the Project, including all information necessary to demonstrate the availability of construction and permanent financing. To the extent Developer wants such financial statements to remain confidential; they shall be supplied to and maintained by the Agency in confidence to the extent permitted by law. C. All information necessary for the design of the Project to meet the Agency's reasonable requirements. This information shall be sufficient to allow Agency to evaluate site configuration, architectural design and similar issues. D. All Information necessary to show tenant availability and interest, the nature of the proposed tenants, and the financial strength and resources of the tenants. To the extent Developer wants such information to remain confidential; they shall be supplied to the Agency only if confidentiality can be maintained. E. All information necessary to conduct the Review Meeting required under Section 2.B. hereof. The Developer shall negotiate exclusively with the Agency's negotiating team and with no other persons unless expressly authorized to do so by the Agency's negotiating team. During the period of negotiations, no statements will be made by the Developer or Agency to the media without the approval of the Agency's negotiating team. No prepared statements shall be released to the media without the mutual consent of the respective negotiating teams. SECTION 4. AGENCY'S RESPONSIBILITIES. A. Agency Assistance. The Agency shall cooperate fully in providing Developer with appropriate information and assistance, but such assistance shall not include financial assistance unless specifically provided herein. B. Preparation of Agreement. If agreement is reached on the business terms for inclusion in the DDA, the Agency shall prepare such DDA for consideration by the Developer. Agency's expenses incurred in connection with the preparation of the DDA shall be absorbed by Agency. 15126 v8 6 C. California Environmental Quality Act. The Agency will assist Developer to the fullest extent possible in preparing any necessary environmental documentation for the Project. D. Grant Funds. The Agency may, but is not required to, apply for financial assistance for the project from the U.S. Environmental Protection Agency, Department of Housing & Urban Development and the California Integrated Waste Management Board or other relevant agencies. E. Epsteen Parcel Remediation. If both parties deem it appropriate to the Project, the Agency may order the owner of the Epsteen Parcel or any other responsible party to clean up this parcel under the powers granted to the Agency by California Health & Safety Code § 33459.1(a)(1). SECTION 5. GOOD FAITH DEPOSIT. The Developer will submit to the Agency a good faith deposit in the sum of Ten Thousand Dollars ($10,000.00) in the form of a cash deposit, cashier's check, irrevocable letter of credit, or other form of security acceptable to the Agency to insure that the Developer will proceed diligently and in good faith to negotiate and perform all of the Developer's obligations under this Agreement ("Deposit"), If the Deposit is in cash or a certified cashier's check, it shall be deposited in an interest-bearing account in a bank or trust company selected by the Agency. Interest, if any, shall be added to the Deposit and held as additional security for the Developer's obligations hereunder. Upon termination of this Agreement, the balance of the Deposit, less charges against the Deposit deducted as provided herein, shall be returned to the Developer provided that the Developer has negotiated diligently and in good faith and carried out its obligations, to the extent possible, hereunder. If Developer has failed to do so, in as much as the actual damages which would result from a breach by Developer of its obligations under this Agreement are uncertain and would be impractical or extremely difficult to determine, Agency shall be entitled to retain the entire amount of the Deposit, as the total liquidated and agreed damages. The Deposit shall be non-refundable to Developer in the event of his default under this Agreement or, if it is determined that the parties will proceed and prepare a DDA, under the DDA. Any Agency costs incurred in preparing this Agreement or a DDA, will be a cost absorbed by the Agency as described in Section 4B. Any costs incurred by Developer in preparing this Agreement or a DDA will be a cost absorbed by Developer. If the Agency terminates the Project after the Review Meeting required by Section 2 for any reason, the Deposit shall be refunded to the Developer. SECTION 6. MISCELLANEOUS. A. No Commissions. The Agency shall not be liable for any real estate commission or any broker's fees which may arise in relation to the Project. The Agency represents that it has engaged no broker, agent, or finder in connection with this transaction, and the Developer agrees to hold the Agency harmless from any claim by any broker, agent, or finder retained by the Developer. B. Ownership of Documents. If the negotiations contemplated by this Agreement do not result in the execution of an agreement, Developer acknowledges that all reports, studies, analysis, site plan layouts, engineering studies, memorandums, or similar documents regarding the proposed development which were prepared during the period of negotiations 15126 va 7 (except tenant information and proformas), which have been submitted to Agency, the City of Palm Springs, the County of Riverside, or any other governmental agency are public documents and will not be kept confidential. C. Purpose of Contract. It is expressly understood and agreed by the parties that this is an Agreement regarding the conduct of contract negotiations only and does not convey any interest in the Site whatsoever. It is further agreed and understood that this Agreement does not imply any obligation on the part of either party to enter into any agreement that may result from the negotiations contemplated herein. D. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that(i) such party is duly organized and existing, (ii)they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day first above written. [SIGNATURES ON NEXT PAGE.] 15126 vs 8 "AGENCY" COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic By: . �� . Chairman ATTES e .l Agency Secretary APPROVED AS TO FORM: �,GC�jYt,. _ Agency sel Mailing Address: Palm Springs Redevelopment Agency 3200 Tahquitz Canyon Way Palm Springs, CA 92263 Attn: [SIGNATURES CONTINUED ON NEXT PAGE] < 'Y�'`40'VEV FRY ME r'o6o9Ls�CJ61;Ty EE'I�LV, AGfNr,Y FAY REi. Dj0. 15126 A 9 "DEVELOPER" GEIGER, LLC (Check One_Individual _Partnership _Corporation) (Corporations require two signatures:one from each of the following:(A) Chairman of Board,President,any Vice President;AND(B)Secretary,Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial Office) (NOTARIZEDL By: 11'� Signature Print Name: Print Title: By: Signature Print Name: Print Title: Mailing Address: 9171 Wilshire Boulevard, Penthouse Beverly Hills, CA 90210 (All Signatures must be notarized.) 15126 vs 10 State of California ) County of Los Angeles) On May 20 , 2003 , before me, Roger H. Licht, the undersigned Notary Public personally appeared JOHN J. CARROLL IV, personally known to me (or proved to me 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 with 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 . CX]AY�L0130mD2 NOTARY PUBL tfr'ARYft%C-CVAKX u LOS ANGOE5 COUNTY 1X EXP.N4411.M Q r EXHIBIT A SITE MAP 1 4 1 5 Mttt/ FYfr.•,1 Ttaf//\I'Mr.h+/•J •Of •I ✓.{f H�1 I 111 Y.• q.N ha •.I'Ir•/r tRInH•j 1 1 M[IW IrI.K/fwf/ /ff ✓Y�I••I 1�M yV/f if N�/4 I I1+/• oo 11 2 � • Ir.. GPI w_..._• /.f/ it _= PARCEL ... ., 1 �i r,•• 23.07 AC. HET 1 `• 1 ;Krj :, 1039611 s0 FL :JIA i// % rites. .0 of p ' I�1 Imo...• •� 1 WM 1 � r M•w • U _ YI/I• I. lI C, u N r h . i •o • :w,1 AGOvel 1 m AGeNCy i PARCEL 1 PARCEL. 2 ., 0.22 AC.. NET r 5.39 AC NET • I i : 35010s'sci FT ILL 1 234143 SO. fL r«.•f f�- r Act. •.fM•r� NIN •.r H• A I,_N • , C•. M v! ti n -aft v.O NK ��{I?-Ar tue.._f 2r.._ R AMQIV •� / ✓ r. Exhibit "B" SCHEDULE OF PERFORMANCE ACTION TIMELINE 1. Submit— Preliminary plans Thirty days for pre-application review. after fully executed DDA. 2. Submit— PDD application and Sixty days after fully all associated special studies executed DDA. and reports. 3. City review of application for Thirty days after#2 completeness. above. 4. City prepares EIR. Nine to twelve months after#2 above. 5. Planning Commission review Nine to twelve months of application — Public hearing. after#2 above. 6. City Council review of application — Nine to twelve months Public hearing. after#2 above. 7. Submission of Final Construction Within thirty days after Drawings. Landlord/Tenant shall approval of any required prepare and submit final Construction discretionary approval. Drawings and Specifications to the City. 8. Approval of Final Construction Drawings. Within thirty to sixty days City shall approve, conditionally approve after receipt by Landlord. or disapprove the Final Construction and Specifications for Site. 9. Governmental Permits. Landlord/Tenant Prior to the date set forth shall obtain any and all permits required herein for the by the City or any other governmental commencement of agency. construction of the Improvements. M Commencement of Construction. Within forty-five days after Landlord/Tenant shall commence approval of Final construction of the Improvements. construction Drawings. 11. Completion of Construction. Within two-hundred ten Landlord/Tenant shall complete days after commencement construction of the Improvements. of construction. 15126 A 12 r 12. City Certificate Completion. City to Within thirty days of the issue Landlord/Tenant its Certificate receipt by the City of the of Completion. Certificate of Occupancy. 13. Tenant Possession. Landlord/Tenant Estimated completion date deliver completed building. Spring 2005. 15126 vs 13 Geiger, LLC • Exclusive Agr to Negotiate AGREEMENT #439C R1166, 2-20-02 EXCLUSIVE AGREEMENT TO NEGOTIATE--- -- ----- - WITH GEIGER, LLC FOR THE DEVELOPMENT OF A SHOPPING CENTER THIS EXCLUSIVE AGREEMENT TO NEGOTIATE ("Agreement"), is made this 416 day of , 2002, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS ("AGENCY") and GEIGER, LLC ("Developer"). RECITALS The parties entered into this Agreement on the basis of the following facts, understandings, and intentions: A. The 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 Sections 33000, et seq.). B. The Agency desires to effectuate the Redevelopment Plan for Redevelopment Project Area No. 4, now a part of Merged Project Area #1, by providing for the development of a regional retail shopping center featuring a big box retail user within a portion of the approximately 38-acre vacant property at the northeast corner of Gene Autry Trail and Ramon Road (the "Shopping Center"). C. The Developer is experienced in shopping center development and remediating sites subject to environmental contamination and has dealt with the major tenants who might occupy the Shopping Center. The term "Developer," as used herein, includes the principals, partners, and joint venturers of Developer and all obligations of Developer herein shall be the joint and several obligations of such principals, partners, and joint venturers. D. Due to various uncertainties, including market conditions and the availability of tenants, the need to develop a land use plan with adequate environmental review, and conditions of the site, including prior soil contamination issues creating significant remediation costs, the parties believe additional due diligence is necessary before a conclusive purchase agreement can be concluded. F. The Agency and Developer desire, for the period set forth herein, to negotiate diligently and in good faith to prepare an agreement whereby the Developer would develop the Shopping Center Site for a major regional power center. NOW, THEREFORE, and in consideration of the mutual covenants hereinafter contained, it is mutually agreed upon by the parties as follows: SECTION 1 . NATURE OF NEGOTIATIONS. A. Good Faith. The Agency and the Developer agree that, for the period set forth in Section 2 herein, they will negotiate diligently and in good faith to prepare and enter into an agreement (the "DDA") consistent with the provisions of this section for the development of a Shopping Center (the "Project") on the Site specified herein. The development will be subject to all rules, regulations, standards, and criteria set forth in the Redevelopment Plan, the City's Geiger-Gabay agreement 2-02.wpd 0 General Plan, applicable specific plans and zoning regulations, and with this Agreement. The DDA will generally be in the form negotiated by the Agency with other development entities. B. Site. The Project shall be located upon all or a portion of the real property designated as the "Shopping Center" or the "Site", as shown in the "Site Map," attached hereto as Exhibit "A" and incorporated herein by this reference. The Site is divided into two ownerships, herein designated as the "Agency Parcel" and the "Epsteen Parcel". The site may include only a portion of the Epsteen Parcel. It is anticipated that the project will be developed in phases. C. Nature of Shopping Center and Ownership. The Developer's interest shall be fee. The design shall be consistent with the Agency's and the City's design guidelines and Developer shall obtain architectural review from the City's Design Review Board. The Developer is responsible for obtaining all approvals and entitlements, arranging financing, and constructing all improvements upon the Site. The Shopping Center shall be a "power center" with a major tenant big box retailer occupying at least 100,000 or more square feet, and ancillary retail tenants to include uses such as general merchandise, food, theaters, home improvement, clothing, electronics, sports, restaurants, and similar uses. In the event that after diligent good faith effort Developer cannot get a commitment from a big box user in the category of Wal-Mart, Home Depot, Costco or other similar user, then Developer may propose alternative smaller major tenants in a mixed retail use designed to produce significant sales tax. The construction cost of the Project will exceed $8,000,000. D. Soils. Agency has disclosed all information it has concerning the condition of the soils, which contain contamination and require remediation. Agency shall sell the property in "as is" condition and not retain liability for soils conditions following the remediation and sale of the site. It shall be the obligation of the Developer to investigate the site and develop a remediation plan which can be implemented by Developer within the project economics; the remediation plan is subject to approval by the Agency. Agency may apply for financial assistance from the State or Federal government to assist Developer with the remediation of the contaminated portion of the site, but it shall be the Developer's responsibility to finance and undertake the remediation of the Site. The Agency and Developer, together with the County of Riverside Department of Environmental Health, have determined that a 'partial clean closure" of the site may be the most practical approach, and that California Health & Safety Code ("H&SC") § 33459.1(a)(1) allows Redevelopment Agencies to "take any actions that the agency determines are necessary and that are consistent with other state and federal laws to remedy or remove a release of hazardous substances on, under, or from property with a project area, whether the agency owns that property or not," thereby creating additional authority to clean the site, which the Agency may utilize to assist the Developer in accomplishing the remediation. The Developer acknowledges the Agency will not have any obligation to utilize any public resources except those it may receive from the State or Federal government. Developer will investigate and determine if it will decline to acquire any parcels which cannot be adequately mitigated, prior to the expiration of the period to negotiate provided herein. E. Financial Provisions. Developer shall acquire a fee interest in all or a portion of the Site at a price to be agreed upon by the parties with the actual net usable square footage determined through survey and with an offset for remediation costs. Geiger-Gabay agreement 2-02.wpd -2- 0 0 1. Developer shall be responsible for funding the cost of any condemnation action. 2. Developer shall be responsible for financing and constructing all improvements. 3. Developer shall pay for all necessary public improvements and pay all City's fees for processing the Project, without assistance from the Agency. 4. Nothing in this agreement shall be construed to be contrary to the provisions of Health & Safety Code Section 33426.5: "Notwithstanding the provisions of Sections 33391, 33430, 33433, and 33445, or any other provision of this part, an agency shall not provide any form of direct assistance to: (b) (1) A development that will be or is on a parcel of land of five acres or more which has not previously been developed for urban use and that will, when developed, generate sales or use tax pursuant to Part 1.5 (commencing with Section 7200) of Division 2 of the Revenue and Taxation Code, unless the principal permitted use of the development is office, hotel, manufacturing, or industrial, or unless, prior to the effective date of the act that adds this section, the agency either owns the land or has entered into an enforceable agreement, for the purchase of the land or of an interest in the land, including, but not limited to, a lease or an agreement containing covenants affecting real property, that requires the land to be developed. (2) For the purposes of this subdivision, a parcel shall include land on an adjacent or nearby parcel on which a use exists that is necessary for the legal development of the parcel. (e) This section shall not be construed to apply to agency assistance in the construction of public improvements that serve all or a portion of a project area and that are not required to be constructed as a condition of approval of a development described in subdivision (a), (b), or(c), or to prohibit assistance in the construction of public improvements that are being constructed for a development that is not described in subdivision (a), (b), or (c)." 5. Developer shall be responsible for all soils remediation costs. 6. Developer's remediation costs for the Agency parcel may be offset against the sale price to the extent of the sale proceeds or may be offset for the entire site in the same manner as for the Epsteen parcel. The Agency parcel may be contributed to the project at no charge. F. Schedule. The goal will be to develop the Shopping Center for opening by the Third Quarter of 2003 through the First Quarter of 2004, with an understanding that the opening of the project may be phased. The DDA shall contain a Schedule of Performance. Due to the need to possibly acquire certain parcels through condemnation or environmental enforcement action under§33459, title to the parcels may be delivered in phases. G. Use, Transfer, and Maintenance Restrictions. The DDA will generally be subject to restrictions on use and transfer during construction and for a specified period thereafter (i) to assure that the use will be consistent with and promote the Redevelopment Geiger-Gabay agreement 2-02.wpd -3- Plan, (ii) to protect the character of the Project and to provide an adequate long-term financial return, (iii) to prevent speculation, and (iv) to assure that any transferee has the resources, capability, and experience to successfully operate the Shopping Center. In addition, restrictions shall be recorded to assure proper maintenance of landscaping and improvements. H. Property Acquisition. To the extent permitted by law, the DDA will contain provisions that the Agency may consider the use of its power of eminent domain for site assemblage should voluntary negotiations be unsuccessful, provided that all costs shall be borne by the Developer. SECTION 2. PERIOD OF NEGOTIATIONS. A. Period of Exclusive Negotiation. The period of negotiation shall be six (6) months from the date this Agreement is signed by the Agency, except as provided herein. B. Early Termination. Within one hundred twenty (120) days from the date hereof, the parties shall meet and review the status of performance under this Agreement (herein "Review Meeting"). Within such period, Developer should have done the following: 1. Prepared a preliminary site plan. 2. Prepared a preliminary financial proforma. 3. Have developed a tenant interest list specifying tenants contacted and those from whom commitments have been or will be obtained. To the extent Developer wants such information to remain confidential, they shall be supplied to the Agency only if confidentiality can be maintained. If the parties determine that the Project is not economically feasible, or if Agency finds Developer's progress with respect to the foregoing unsatisfactory, then Agency may terminate this Agreement. C. Extension of Time. This Agreement shall terminate after the expiration of the period set in Subsection A, unless early termination under Subsection B, or unless extended as follows: 1. For sixty (60) days, if an agreement has been prepared by the Agency and executed by the Developer and has been submitted to the Agency but has not yet been approved by the Agency Board; or 2. For thirty (30) days if the major business terms have been agreed to and the Executive Director determines that further negotiations are likely to result in a written agreement; or 3. By mutual agreement of the parties. D. Agency Approval. Developer understands and acknowledges that if negotiations culminate in an agreement, such agreement shall be effective only after and if the agreement has been considered and approved by the Agency Board after public hearing thereon as required by law. Geiger-Gabay agreement 2-02.wpd -4- 0 SECTION 3. DEVELOPER'S RESPONSIBILITIES. During the period of negotiation, Developer will prepare such studies, reports, and analysis as shall be necessary to permit Developer to determine the feasibility of the Project. During the period of negotiation, and as requested by the Agency, the Developer shall submit to the Agency the following: A. Full disclosure of Developer's principals, partners, joint venturers, negotiators, consultants, professional employees, or other associates of the Developer who are participants or principals of the Project, and all other relevant information concerning the above. B. Statement of financial condition in sufficient detail to demonstrate Developer's financial capabilities, those of its principals, partners, joint venturers, and those of its prospective developers to satisfy the commitments necessitated by the Project, including all information necessary to demonstrate the availability of construction and permanent financing. To the extent Developer wants such financial statements to remain confidential, they shall be supplied to the Agency only if the confidentiality of the statements can be maintained. C. All information necessary for the design of the Project to meet the Agency's reasonable requirements. This information shall be sufficient to allow Agency to evaluate site configuration, architectural design and similar issues. D. All information necessary to show tenant availability and interest, the nature of the proposed tenants, and the financial strength and resources of the tenants. To the extent Developer wants such information to remain confidential, they shall be supplied to the Agency only if confidentiality can be maintained. E. All information necessary to complete Midterm Review under Section 2. The Developer shall negotiate exclusively with the Agency's negotiating team and with no other persons unless expressly authorized to do so by the Agency's negotiating team. During the period of negotiations, no statements will be made by the Developer or Agency to the media without the approval of the Agency's negotiating team. No prepared statements shall be released to the media without the mutual consent of the respective negotiating teams. SECTION 4. AGENCY'S RESPONSIBILITIES. A. Agency Assistance. The Agency shall cooperate fully in providing Developer with appropriate information and assistance, but such assistance shall not include financial assistance unless specifically provided herein. B. Preparation of Agreement. If agreement is reached on the business terms for inclusion in the agreement, the Agency shall prepare such agreement for consideration by the Developer. Agency's expenses shall be absorbed by Agency. C. Environmental Quality Act. The Agency will assist Developer in preparing an environmental impact report or such environmental documentation as may be necessary for the Project. Geiger-Gabay agreement 2-02.wpd -5- D. Zoning. The Agency will undertake all acts necessary to rezone such portions of the property as may be necessary to permit the Shopping Center on the Site. E. Grant Funds. The Agency may, but is not required to, apply for financial assistance for the project from the U.S. Environmental Protection Agencv, Department of Housing & Urban Development and the California Integrated Waste Management Board or other relevant agencies. F. Epsteen Remediation. If both parties deem it appropriate to the project, the Agency may order the owner of the Epsteen parcel to clean up its site, under the powers granted to the Agency by California Health & Safety Code ("H&SC") § 33459.1(a)(1). SECTION 5. GOOD FAITH DEPOSIT. The Developer has previously submitted to the Agency a good faith deposit in the sum of Ten Thousand Dollars ($10,000.00) in the form of a cash deposit, cashier's check, irrevocable letter of credit, or other form of security acceptable to the Agency to insure that the Developer will proceed diligently and in good faith to negotiate and perform all of the Developer's obligations under this Agreement. If the deposit is in cash or a certified cashier's check, it shall be deposited in an interest-bearing account in a bank or trust company selected by the Agency. Interest, if any, shall be added to the deposit and held as additional security for the Developer's obligations hereunder. Upon termination of this Agreement, the balance, less charges against the Deposit deducted as provided herein, shall be returned to the Developer provided that the Developer has negotiated diligently and in good faith and carried out its obligations hereunder. If Developer has failed to do so, in as much as the actual damages which would result from a breach by Developer of its obligations under this Agreement are uncertain and would be impractical or extremely difficult to determine, Agency shall be entitled to retain the entire amount of said deposit, as liquidated and agreed damages. It is further understood that the DDA may require an increase in the good faith upon execution of the DDA. Notwithstanding the foregoing, the first Five Thousand Dollars ($5,000.00) shall be non-refundable. In the event, after Review Meeting in Section 2, it is determined to proceed and prepare a DDA, then, thereafter, the additional Five Thousand Dollars ($5,000.00) shall be used for the Agency's costs in preparing the DDA. If the Agency terminates the project at the Review Meeting for any reason, the remaining $5,000 shall be refunded to the Developer. SECTION 6. MISCELLANEOUS. A. No Commissions. The Agency shall not be liable for any real estate commission or any broker's fees which may arise herefrom. The Agency represents that it has engaged no broker, agent, or finder in connection with this transaction, and the Developer agrees to hold the Agency harmless from any claim by any broker, agent, or finder retained by the Developer. B. Ownership of Documents. If the negotiations contemplated by this Agreement do not result in the execution of an agreement, Developer shall transfer to Agency copies of any reports, studies, analysis, site plan layouts, engineering studies, memorandums, or similar documents regarding the proposed development and prepared during the period of negotiations (except tenant information and proformas), which copies shall become the property of Agency. Such transfer shall be made without any representation or warranty by Geiger-Gabay agreement 2-02.wpd -6- the Developer as to the accuracy or sufficiency of the contents of such documents and shall be made subject to the rights of the preparers of such documents including, without limitation, the copyright (if any) associated with such documents. C. Purpose of Contract. It is expressly understood and agreed by the parties hereto that this is an Agreement regarding the conduct of contract negotiations only and does not convey any interest in the property whatsoever. It is further agreed and understood that this Agreement does not imply any obligation on the part of the Agency to enter into any agreement that may result in negotiations contemplated herein. D. Amendment. This Agreement may only be amended by a document in writing signed by the parties hereto. E. Time for Acceptance. This Agreement, when executed by the Developer and delivered to the Agency, shall constitute a binding offer which cannot be withdrawn prior to February 15, 2002, so that the Agreement may be presented to the Agency Board. Notwithstanding any other provision herein to the contrary, Agency shall not be obligated hereunder unless and until the Agency Board authorizes the Chairperson to execute this Agreement. F. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day first above written. "AGENCY" COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, c prate and—t' 4 Chairman AT�. 7 _ _ , Agency Secretary APPROVED AS TO FORM: APPROVED By 'thd LQJAMU4Xa1Y 115M. Agency Counsel A02MMBC C !� 20~64 Geiger-Gabay agreement 2-02.wpd -7- "DEVELOPER" GEIGER, LLC (Check One: _individual, _partnership, _corporation) (NOTARIZE Signature ame: Print Print Title: [NOTARIZED] Signature Print Name: Print Title: Mailing Address: eA z w (Corporations require two signatures; one from each of the following: (A) Chairman of Board, President, any Vice President; AND (B) Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer.) [END OF SIGNATURES / NOTARY JURAT(S) FOLLOW] Geiger-Gabay agreement U2.wpd -9- 0 STATE OF CALIFORNIA ) ss. COUNTY OF -f� a � ) ON 41, before me, Notary Public, personally appeared J'+-4� personally known to me(•o o be the person whose name(.] is/aye subscribed to the within instrument and acknowledged to me that he/e4teAhey executed the same in his/he6their authorized capacity(, and that by his/herfthetr signature(Won the instrument the personX, or the entity upon behalf of which the person( acted, executed the instrument. Witness my hand and official seal. [SEAL] PuaA r. cui Commission;k 729692a z ,/ ,-, i Notary Public-California �. Los Angeles County Sig a— 1 t�ure myCtxnm.Fxp�estv1cr1227J5 STATE OF CALIFORNIA ) ss. COUNTY OF ) ON before me, Notary Public, personally appeared personally known to me(or proved to me on the basis of satisfactory evidence)to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. [SEAL] Signature Geiger-Gabay agreement 2-02.wpd -1 0- EXHIBIT A SITE MAP 3 I `I S �! f s fr nrfr• •i rwi✓ I 1 —/./•./•rY•'YwJ Vf N... MCIY. r rtv..il q �• •• /i M I.�i.f/ �iY.. Iw.rY / 1 NV.11 T .! :; N Ili 'df"WI, y ttiwNtt• i :1 �• 1 1t 11 2 ti m •. .X. �i���)/.I REMAINDER PARCEL �` 1 •1 23.Or AC. NET ! 1039611 SO fr. c ' I D�� ��i•i/a r :: .C l !� . 1 ti ' .ram. iAN s✓r" Wr I I A f ti .nwa • [fl PARCEL 1 PARCEL 2 _ 0 22 AC . NET r ? 5.39 AC NET .11 359105 SO fr. IIL" 234743 $0. f[ .�/`,/,././•}}I(/J1 •TM .r/ ..I Lr wM•..'O. /��� I•!M • 1C1 .!. / \ RAMQN ""'T'r!• ' "'•' ROAD .L .