HomeMy WebLinkAboutR23390- Comdyn PD, LLC - Dvlpmnt of Affordable Housing on a 20-Acre Site (2)Contract Number R24000
PALM DESERT REDEVELOPMENT AGENCY
STAFF REPORT
REQUEST: CONSIDERATION AND APPROVAL OF AN AGREEMENT WITH
COMDYN PD, LLC FOR THE DEVELOPMENT OF AFFORDABLE
HOUSING ON A 20-ACRE SITE
SUBMITTED BY: LAURI AYLAIAN, REDEVELOPMENT MANAGER
DEVELOPER: COMDYN PD, LLC
2800 28th ST., STE. 206
SANTA MONICA, CA 90405
DATE: JULY 14, 2005
CONTENTS: AGREEMENT BETWEEN THE PALM DESERT
REDEVELOPMENT AGENCY AND COMDYN PD, LLC FOR FEE
DEVELOPER SERVICES FOR AGENCY -OWNED PROPERTY IN
THE CITY OF PALM DESERT
Recommendation:
By Minute Motion, that the Agency Board consider and approve the
agreement between the Palm Desert Redevelopment Agency and Comdyn
PD, LLC for fee developer services for Agency -owned property located in the
City of Palm Desert for the development of affordable housing consisting of
infrastructure, 27 senior rental units, and 94 single-family homes; authorizing
the Executive Director to finalize the agreement and the Agency Chair to
execute same.
This is a multi -year agreement. Funding for the work to be performed during the Fiscal
Year 2005/06 has been budgeted in Account No. 870-4698-466-4001. Funding for the
subsequent two fiscal years will be appropriated through the annual budget process.
Executive Summarv:
Acceptance of the staff recommendation will approve an agreement with ComDyn PD,
LLC to develop the infrastructure, senior rental units, and single-family homes designed
for the 20-acre parcel of Agency -owned land immediately west and south of the Hovley
Garden Apartments. Approval will authorize the Executive Director to make minor
modifications (including downward adjustments in cost to the Agency), as appropriate
and necessary, to protect Agency interests prior to execution of the agreement. This
authorization is needed to meet the project schedule, which calls for construction work
to commence before the summer is over.
Contract Number R2400c
Staff Report
Consideration and Approval of Agreement with ComDyn PD, LLC
Page 2 of 4
July 14, 2005
Discussion:
In February 2005, the Redevelopment Agency issued a Request for Proposals to 43
firms interested in developing affordable housing on a 20-acre parcel owned by the
Agency. In April 2005, six written proposals were received in response to the Request
for Proposals. The three top -ranked firms, ComDyn, LLC, Palm Desert Development,
and Rancho Housing Alliance, were interviewed in depth regarding their proposals.
Based on the proposals, the oral interviews, and the recommendation of the Ad Hoc
Housing Committee, the Agency Board on 12 May 2005 authorized staff to negotiate an
agreement with ComDyn, LLC of Santa Monica, California. Staff has been working with
the developer and both parties' legal counsels since that time to negotiate a
development agreement. The agreement appended to this staff report is a result of
those negotiations.
Under the terms of the subject agreement, the developer will be required to build the
infrastructure to serve all planned uses on the 20-acre site, construct 27 senior rental
units and a community room to serve those units, and construct, market and sell 94
single-family homes in three phases. The developer will also be required to:
• Design, permit, and construct the landscaping, senior rental unit carports, and
community gardens
• Qualify potential homebuyers and provide homeowner education and training
• Implement energy conservation measures and elements of universal design into the
design of the single-family homes
• Complete the design development and construction documents for the single-family
homes, based upon previously approved schematic design drawings prepared by
Kristi Hanson, Inc., under contract to the Redevelopment Agency
• Provide monitoring and assistance for three months after the close of escrow as
part of a new -homeowner outreach program to the purchasers of the single-family
homes
The contract amount is for a stipulated sum in the amount of $25,674,845 consisting of
$17,495,901 for the single-family homes, $2,910,156 for the senior rental units, and an
amount not to exceed $5,268,788 for the infrastructure. The Agency will own and
operate the senior rental units and will transfer the single-family homes directly to the
qualifying buyers, providing such subsidy as is necessary to make them affordable to
families of low and moderate income. The entire project is scheduled to take 28 months
to complete.
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Contract Number R24000
Staff Report
Consideration and Approval of Agreement with ComDyn PD, LLC
Page 3 of 4
July 14, 2005
Additional deal points that staff would like to bring to the attention of the Agency Board
are as follows:
The developer is also acting as the general contractor for the project. The
developer is not authorized to issue any change orders to the general contractor
that are outside of the scope of the original project budget without prior consent
of the Agency.
2. The Agency will make payment to the developer based upon the progress of the
construction work, plus a developer's fee that is paid in increments as certain
milestones are reached throughout the course of the project.
3. The stipulated sum for the agreement is based upon the assumption that fifty
percent of the single-family homes will be sold to families of low income and fifty
percent to families of moderate income. In the event that this ratio is significantly
altered, an adjustment to the stipulated sum will be warranted.
4. In the event that there is an increase in the cost for the vertical construction that
exceeds ten percent between the April 2005 date of the developer's proposal and
the date when the vertical construction is permitted, the Agency can require the
developer to solicit bids from third -party general contractors that are mutually
acceptable to both parties. If such a third -party contractor provides a lower bid
than the developer's own general contractor, the Agency can require that the
developer remain in his role as developer, but contract with the third -party
contractor for construction of the vertical improvements. If, during the same
period of time, the cost escalates by an amount less than ten percent of the value
of the vertical construction, the developer will retain his own general contractor to
perform the work, and the stipulated sum will be automatically revised to
compensate for the cost increase. Note that even in the event of a ten percent
cost increase, the contract amount for the developer will be less than was
proposed by any other respondents to the Request for Proposals.
5. The developer will take the lead role in creating and implementing financing,
marketing, community outreach and programming for all sales of single-family
homes. The developer will also identify third -party sources of subsidized
financing that can be used to further leverage the Agency's investment, and/or
deepen affordability to the targeted population of potential homebuyers.
6. In the event of material cost increases for lumber, concrete or copper is greater
than five percent during the actual course of vertical construction work, the
Agency will, with appropriate substantiation of price increases, process a change
order to compensate the developer for these material increases.
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Contract Number R240
Staff Report
Consideration and Approval of Agreement with ComDyn PD, LLC
Page 4 of 4
July 14, 2005
7. Any costs associated with scope increases, such as energy -saving devices,
universal design features, or amenities not previously identified, will come back
to the Agency Board for approval in change orders.
8. The developer will provide a one-year warranty for all construction work, plus
other warranties as provided for by state statute.
Because of the complexity of the subject agreement and the timing of the upcoming
hiatus from meetings of the Agency Board, staff requests that the Agency Board
approve the agreement as presented, subject to minor modifications as may be
approved by Agency Counsel and the Executive Director prior to execution. Such
modifications are likely to be made in areas dealing with: remedies short of termination;
assessment of liquidated damages in the event the developer fails to timely complete
the work; indemnifications, sureties, and insurance requirements specific to concerns
associated with having a single asset limited liability corporation holding harmless the
Redevelopment Agency; and downward adjustments in the infrastructure cost based
upon refinement of the original budgetary estimates.
This affordable housing project will assist the Agency in meeting its requirements under
the Regional Housing Needs Assessment. Assuming an average first deed of trust
value of $110,000 for the single-family homes, the Agency will recoup approximately
$10.5 million of the $25.7 million cost of this project.
Submitted by:
`Cauri Aylaian
Redevelopment Manager
mh
Approval:
McCarthy,
lopment
Carlos rtec , Executive Director
Department Head:
Dave Yrigoye
Director of development/Housing
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Paul S.son/Qifecior or rinance
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Contract No. R2400
AGREEMENT BETWEEN
THE PALM DESERT REDEVELOPMENT AGENCY AND
COMDYN PD, LLC
FOR FEE DEVELOPER SERVICES FOR AGENCY OWNED
PROPERTY LOCATED IN THE CITY OF PALM DESERT
THIS AGREEMENT BETWEEN THE PALM DESERT REDEVELOPMENT
AGENCY AND COMDYN PD. LLC FOR FEE DEVELOPER SERVICES FOR AGENCY
OWNED PROPERTY LOCATED IN THE CITY OF PALM DESERT ("Agreement") is made
this day of , 2005 ("Execution Date") by and between the
PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic
("Owner"), and COMDYN PD, LLC, a California limited liability company ("Developer").
RECITALS
A. Owner is the owner of the real property described in the attached Exhibit A (the
`'Real Property" or the "Site"), and located in the City of Palm Desert ("C"). The Real
Property was acquired by Owner in 1998. Owner desires to develop the Real Property to provide
for (i) the development and construction of a twenty-seven (27) unit senior rental housing facility
(the "Rental Housing") and ninety-four (94) units of affordable single-family detached housing
(the "For -Sale Housing"), with related infrastructure, landscaping and amenities, as more
particularly described in the contract documents ("Contract Documents") listed on Exhibit B.1
hereof, as same may be modified, amplified and refined pursuant to this Agreement, and (ii) the
marketing and sale of For -Sale Housing residences (collectively, the "Project").
B. Owner is a public body, corporate and politic, exercising governmental functions
and powers, and organized under the Community Redevelopment Law of the State of California
(being Section 38000 et seq. of the Health and Safety Code of the State of California).
C. The Housing Cooperation Law of the State of California (being Section 34500 et
seq. of the Health and Safety Code of the State of California) authorizes Owner to enter into a
cooperation agreement with a local housing authority and thereby agree to do any and all things,
necessary or convenient to and/or cooperate in the planning, undertaking, construction, or
operation of housing projects.
D. Owner and the Palm Desert Housing Authority have entered into such a
cooperation agreement entitled "Housing Cooperation Agreement", dated as of May 12. 2005,
and pertaining to the development of the Real Property as described in this Agreement.
E. Pursuant to the Housing Cooperation Agreement, Owner has obtained or will
obtain all of the necessary land use entitlement and approvals for the development and
construction of the Project (the "Existing Approvals'') except for those items listed in Section D
of Exhibit B.3 hereof (the "Remaining A1)prova1s")-
12281-O0003-1877196.7
F. Owner has caused the preparation of certain of the Contract Documents for the
Project, as described in Section C of Exhibit B.3 hereof (the "Owner's Documents").
G. Developer is experienced in the development, construction. marketing and sale of
projects similar to the Project.
H. Owner and Developer desire to enter into an agreement whereby Developer. on
behalf of Owner, shall undertake certain duties in connection with the development and
construction of the Project, and the marketing and sale of the For -Sale Housing, as more
particularly described herein.
NOW, THEREFORE, the parties agree as follows:
Eneaeement and General Duties of Developer.
1.1. EnaaRement of Developer. Owner hereby engages Developer, subject to
the terms and conditions set forth in this Agreement, to perform the duties and obligations set
forth in this Agreement as provided in the Development and Construction Plan, attached hereto
as Exhibit B.3 and the Sales and Marketing Plan, attached hereto as Exhibit B.4, and Developer
agrees to perform such duties and obligations in accordance with the terms and conditions of this
Agreement.
1.2. Performance of Developer. Developer accepts the relationship of trust and
confidence established between Developer and Owner by this Agreement. Developer agrees to
furnish its reasonable, good faith skill and judgment and to cooperate with Owner, and Owner's
employees and representatives, the Project general contractor (the "General Contractor"), the
Rental Housing architect (the "Rental Housing Architect") and the For -Sale Housing architect
(the "For -Sale Housing Architect") (sometimes jointly referred to as the "Architects") and other
contractors and consultants performing work on the Project listed on Exhibit C attached hereto,
as same may be expanded ("Consultants'). In consideration for the payment by Owner to
Developer of the sums required under this Agreement, Developer agrees to use its good faith
efforts to perform its duties and obligations under this Agreement (i) in an efficient, expeditious
and economical manner, consistent with this Agreement, (ii) in such manner designed to effect
completion of the development and construction of the Project and the marketing and sale of the
For -Sale Housing within the time periods set forth in the Business Plan attached hereto as
Exhibit B, as same may be modified pursuant to this Agreement (the "Business Plan"), and
(iii) in such manner designed to effect completion of the development and construction of the
Project and the marketing and sale of the For -Sale Housing within the budgeted costs set forth in
the Business Plan.
1.3. Developer's Personnel and Developer's Overhead.
(a) Developer shall provide an adequate number of experienced
administrative, construction, sales and supervisory personnel to reasonably perform the duties
and obligations of Developer as described in this Agreement. In this regard, Developer shall
provide the personal services of Loren Bloch in a supervisory capacity. Developer shall be
responsible for hiring. supervising, training and paying all of Developer's employees and staff
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members performing administrative, construction, marketing and sale, supervisory, or other
services relating to the Project. Developer shall provide reasonably necessary training to its
personnel relating to the duties and obligations of Developer under this Agreement.
(b) Developer shall be responsible for the payment of Developer's
overhead costs, which are included in the "Developer Fee" (as defined in Section 4 hereof),
including all salaries, fringe benefit contributions, payroll taxes, withholding taxes and other
taxes or levies, accounting fees, legal fees, office overhead expenses, travel expenses, leasing
and sales expenses, telephone and other telecommunication expenses, and document
reproduction expenses associated with the Developer's obligations under this Agreement.
1.4. Completion of the Proiect. Notwithstanding anything to the contrary
contained herein, for purposes of this Agreement, the construction of each of the Rental Housing
and the For -Sale Housing will be considered complete upon the last to occur of (a) Owner's
receipt of a written certification from the Rental Housing Architect or the For -Sale Housing
Architect, as applicable, that all construction work required to be performed under this
Agreement for completion of the physical improvements ("Work") has been completed
substantially in accordance with the "Construction Documents", as same shall be listed in
Section C of Exhibit B.1 of this Agreement, subject only to standard punchlist items which in the
aggregate will cost no more than Seven Thousand Five Hundred Dollars ($7,500) to complete;
(b) the issuance of, and receipt by Owner, of a certificate of occupancy issued by the City; and
(c) the receipt of unconditional stop notice releases relating to any stop notices from contractors
or suppliers performing services or providing materials. At the next regularly scheduled meeting
of the Palm Desert Redevelopment Agency occurring after the completion of construction of
each of the Rental Housing and the For -Sale Housing, Owner shall approve and thereafter
deliver to Developer a Partial Certificate of Completion in a form reasonably acceptable to
Developer evidencing such completion (the "Partial Certificate of Completion"). Upon
completion of the marketing and sale of the For -Sale Housing, as described in the Sales and
Marketing Plan attached as Exhibit B.4 hereto, Developer shall request in writing and at the next
regularly scheduled meeting of the Palm Desert Redevelopment Agency, Owner shall approve
and thereafter deliver to Developer a Certificate of Completion in form reasonably satisfactory to
Developer evidencing such completion (the "Final Certificate of Completion").
1.5. Business Plan.
(a) The parties have formulated a Business Plan for the development
and construction of the Project and the marketing and sale of the For -Sale Project, attached
hereto as Exhibit B. The Business Plan is comprised of (a) the "List of Contract Documents" at
Exhibit B.1, (b) the "Proiect Budeet" at Exhibit B.2, (c) the "Development and Construction
Plan" at Exhibit B.3, (d) the "Sales and Marketine Plan" at Exhibit B.4, and (e) the "Project
Schedule" at Exhibit B.S. In addition, the "List of Consultants" is provided at Exhibit C.
(b) The parties acknowledge and agree that the Business Plan shall be
refined and modified as necessary, among other things, to incorporate the permit -ready
construction documents for the Project in the List of Contract Documents (the "Construction
Documents") and to adjust the Project Schedule as the Project proceeds to reflect then -current
conditions. The List of Consultants shall be modified to include the full list of Consultants for
12281-00003-1477196 7
the Project as they are identified by the parties. The Business Plan may be updated and refined
periodically by written document, upon the request of either party, subject to the prior reasonable
written approval of the other party, and such modified Business Plan shall be deemed to
constitute the "Business Plan" hereunder.
1.6. Progress Meetings and Reports.
(a) Developer shall schedule and attend monthly meetings with Owner
to discuss the progress of the development and construction of the Project and the marketing and
sale of the For -Sale Housing and to assess Developer's compliance with the requirements of this
Agreement, including, without limitation, the terms and objectives of the Business Plan, as same
may be amended.
(b) Within ten (10) days following the end of each calendar month,
Developer shall provide Owner with a detailed written report on the status of the development
and construction of the Project and the marketing and sale of the For -Sale Housing, including,
without limitation, the status of Developer's compliance with the requirements of the
Development and Construction Plan, the Sales and Marketing Plan and the Project Budget,
including a report showing any variation or deviation from the Project Budget and the basis for
such variation or deviation, and shall document any adjustments to the Project Schedule based on
the current status.
1.7. Meetings with Third Parties. Developer shall use good faith efforts to
provide Owner with seven (7) days' advance notice in order to enable Owner to prepare for and
attend any meetings in connection with the development, construction and/or sale of the Project
at which any significant negotiations or events are expected to occur. including, without
limitation, meetings with either Architect, the Consultants or the General Contractor, meetings
respecting any easement agreements and meetings with prospective purchasers. At Owner's
request. any such meeting shall be re -scheduled to a time reasonably acceptable to Owner, so
that Owner may attend same.
1.8. Project Budget. In the event that the total costs of the Project included
within the Stipulated Sum, excluding those items set forth in Section 4.1 hereof, exceed the total
amount set forth in the Project Budget, as same may be amended, such excess costs shall be the
responsibility of Developer.
2. Development and Construction Services.
2.1. Construction Services. Developer shall oversee all Work for the Project
by the General Contractor and shall utilize best efforts to cause the same to comply with the
Development and Construction Plan. Developer shall establish and implement appropriate
administrative and financial controls for the development and construction of the Project, as
provided in this Section 2 of the Agreement. Developer shall promptly advise Owner if at any
time Developer reasonably believes that development or construction of the Project is not
proceeding in accordance with the Development and Construction Plan and/or the Construction
Documents, or if Developer reasonably believes that the Project Budget will be exceeded. In
such event. Developer shall make recommendations to Owner as to the appropriate corrective
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action reasonably to be taken, the parties shall consult and coordinate to address such issues and
Developer will implement any such reasonable corrective action approved by Owner.
2.2. Preliminary Activities.
(a) Within ten (10) business days after the Execution Date of this
Agreement, Developer shall, in coordination with Owner, arrange for the performance by third
party consultants acceptable to the parties (the "Initial Due Diligence'') of an updated Phase I
report, assessing the environmental condition of the Real Property, and an updated soils and
geotechnical report. The parties have entered into that certain Right of Entry and Access
Agreement providing access to the Real Property for such preliminary activities. Upon
completion, copies of such reports shall be delivered to Owner and Developer for review. Based
on the results of the Initial Due Diligence, the parties shall mutually determine whether any
further evaluation ("Additional Due Diligence") is warranted. If Additional Due Diligence is
undertaken, the Project Budget shall be revised to add the costs of such Additional Due
Diligence to the Project Costs (as hereinafter defined) to be paid by Owner and the Project
Schedule shall be revised to take into account such Additional Due Diligence. In the event,
following the Additional Due Diligence, remediation work is required pursuant to applicable
laws or governmental requirements, such work shall be performed or coordinated and overseen
by Developer, and the costs of such work shall be added to the Project Costs to be paid by
Owner.
(b) Owner has obtained the Existing Approvals for the Project.
Developer shall process in a timely manner and diligently pursue the Remaining Approvals in
accordance with Sections D and E of the Development and Construction Plan. Developer shall
provide assistance to Owner and the City by, among other things, preparing documents in
connection with Owner's submissions for the Remaining Approvals, and attending meetings or
otherwise making presentations before applicable governmental agencies, including the City
Council, and the City's Planning Commission and Architectural Review Commission, as
required. In connection with Developer's obligations under this Section 2.2, Developer shall not
submit or file any document on behalf of Owner relating to the Remaining Approvals not
contemplated by the Development and Construction Plan without the prior written approval of
Owner, which shall not be unreasonably withheld or delayed. Developer and Owner shall
coordinate and cooperate with each other in connection with the obtaining of the Remaining
Approvals without unreasonable delay.
2.3. Architect and Consultant Contracts. Owner has selected, retained and
executed an agreement with Kristi Hanson Architects, Inc. as the Rental Housing Architect.
Developer has selected and Owner has accepted KTGY Group, Inc. as the For -Sale Housing
Architect and the Consultants whose services are necessary or desirable in connection with the
development and construction of the Project, as listed on Exhibit C attached hereto. Developer
shall negotiate with the For -Sale Housing Architect and the Consultants and shall prepare
agreements to be entered into between Developer and the Architect and Developer and the
various Consultants in forms reasonably acceptable to Owner. Notwithstanding anything to the
contrary contained in this Agreement, subject to Section 1.8 hereof, only to the extent of
Owner's timely payment of the Project Costs (as defined in Section 4 hereof) in accordance with
this Agreement, shall Developer be responsible for the timely payment of all costs and fees
12281-00003.1477196 7
payable under all contracts entered into between Developer and the For -Sale Housing Architect
and Consultants, as well as any legal fees incurred by Developer in connection with the
negotiation and preparation of such agreements.
2.4. Construction Contract. Owner and Developer have selected and approved
Community Dynamics, Inc., as the General Contractor for the Project, subject to the provisions
of Section F of the Development and Construction Plan. The parties acknowledge and agree that
Community Dynamics, Inc. and Developer are related entities. For purposes of this Agreement,
the term "General Contractor" shall include, to the extent applicable, the term "New General
Contractor". as defined in Section F of the Development and Construction Plan. Developer shall
negotiate with the General Contractor and shall prepare a guaranteed maximum cost construction
contract (the "Construction Contract") to be entered into between the Developer and the General
Contractor substantially in the form attached hereto as Exhibit F, as provided in the Development
and Construction Plan. In the event that the New General Contractor serves as the General
Contractor, the Project Schedule shall be extended accordingly. The terms of the Construction
Contract shall (i) require that the General Contractor commence and complete the Project in
compliance with requirements of the Construction Documents, the Project Schedule and the
Project Budget, as same may be amended, and (ii) require that the General Contractor obtain a
performance bond and a labor and material payment bond (from a bonding company reasonably
acceptable to the Owner) in dual obligee form covering performance of the General Contractor
and cause Owner and Developer to be named as only co -obligees thereon. Notwithstanding
anything to the contrary contained in this Agreement, subject to Section 1.8 hereof, only to the
extent of Owner's timely payment of the Project Costs (as defined in Section 4 hereof) in
accordance with this Agreement, shall Developer be responsible for the timely payment of all
costs and expenses payable under the Construction Contract, as well as any legal fees incurred by
Developer in connection with the negotiation and preparation of the Construction Contract.
2.5. Easement Agreements. To the extent requested by Owner, Developer
shall initiate negotiations and supervise counsel selected by Owner in the preparation and
negotiation of any reciprocal easement agreement or declaration of easements or grant of
easements affecting or benefiting the Real Property which are necessary or appropriate in
connection with the development of the Project, including, if approved by Owner, easement
agreements relating to shared access rights with other property owners. Each draft of any such
agreement shall promptly be provided to Owner for its review and comment. Any such
document shall be subject to Owner's written approval, which shall be exercised in Owner's sole
discretion, and shall incorporate any specific requirements of Owner. Notwithstanding anything
to the contrary contained in this Agreement, Owner shall be responsible for all costs and fees
associated with the negotiation and documentation of all such easement agreements, including
the legal fees charged by counsel selected by Owner.
2.6. Developer's Review of Construction Documents. Other than the Owner's
Documents, Developer shall review all plans, specifications, drawings, working drawings,
depictions, renderings and other materials prepared by the Architects or the Consultants for the
Project to determine, in Developer's good faith business judgment, whether they are consistent
with Owner's requirements. All such documents shall be submitted to Owner and shall be
subject to Owner's reasonable approval. As to all Construction Documents, Developer shall
provide recommendations to Owner on construction feasibility, availability of materials and
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labor, factors related to costs, including costs of alternative designs or materials and possible cost
savings. In addition, as to all Construction Documents, Developer shall recommend design
concepts and the utilization of construction methods and materials which are intended to result in
energy efficiency and conservation in the Project, with the goal of minimizing the energy
consumption and the operating costs of the Project.
2.7. Proiect Management. Developer shall maintain a reasonable number of
competent staff persons at the Project site to monitor the progress of the Work. Developer shall
oversee and coordinate the activities of the Architects, the General Contractor and all
Consultants and use its good faith efforts to avoid unnecessary duplications of effort or
unnecessary delays in the progress of the Work. Developer shall assume responsibility for the
planning, scheduling and proper management for all phases of development of the Project,
including, without ]imitation, schedules for commencement and completion of the various phases
of design and commencement and completion of construction, and the Developer also shall be
responsible for the day-to-day management of the development of the Project.
2.8. Change Orders. Developer shall develop and use good faith efforts to
properly implement, subject to Owner's approval, a system for reviewing and processing
construction change orders. Developer shall make recommendations to Owner concerning
necessary or desirable changes to the Work, shall review requests for change orders, shall submit
recommendations to the Owner concerning changes and shall negotiate change orders with the
General Contractor. Developer shall not be authorized to issue change orders which are outside
the scope of the Project Budget without the prior consent of Owner, which consent shall not be
unreasonably withheld. Owner shall respond in writing to such applications for change orders
within two (2) business days after receipt thereof or as soon as is practicable within the
constraints of Owner's municipal purchasing ordinance. Developer shall modify the Project
Budget and, to the extent applicable, the Project Schedule, to reflect each change order.
2.9. Payment Applications.
(a) The procedure for processing applications for payment
(`'Applications for Payment") for Project Costs, as defined in Section 4 hereof, is set forth in
Exhibit D attached hereto. Owner shall review and process Developer's Applications for
Payment in accordance with Exhibit D. Upon receipt of payment by Owner, Developer shall
promptly pay such amounts to the appropriate payee and shall indemnify Owner against any
third party claims for such payments.
(b) Developer shall, subject to the approval of Owner, oversee, assist
and use reasonable. good faith efforts in the handling of disputes concerning financial or
contractual matters with the General Contractor, Architects and Consultants. Developer shall
have no obligation to institute lawsuits or alternative dispute resolution proceedings in
connection with the foregoing; provided, however, in the event Owner, at Owner's sole cost,
institutes a lawsuit or commences an alternative dispute resolution proceeding in connection with
any such dispute, Developer shall be obligated to provide reasonable assistance chargeable to
Owner at Developer's hourly rate (as set forth in Developer's annual rate schedule), by, among
other things, preparing documents in connection with Owner's court or other filings and
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attending hearings and providing testimony before applicable courts or other relevant
decisionmakers.
2.10. Inspections and Construction Punchlist. Developer shall establish
inspection procedures and conduct periodic inspections of the Work (including the materials
used in the course of construction) as are reasonably necessary to process applications for
payment or as may be reasonably necessary to monitor compliance of the Work with the
requirements of the Construction Documents. Prior to processing the General Contractor's final
application for payment, Developer shall conduct a thorough inspection of the Project, shall
prepare a detailed "punchlist' intended to state any items which reasonably require installation or
repair and shall name the party responsible for undertaking such installation or repair. Developer
shall use its good faith efforts to confirm that all Work, including punchlist work, is promptly
and properly completed. Developer shall deliver to Owner as -built drawings of the Project
within thirty (30) days following completion of each of the Rental Housing and the For -Sale
Housing, and shall deliver to Owner all keys, equipment, operational manuals, warranties and
other items relating to the Rental Housing within ten (10) days after completion thereof.
Developer shall oversee the design and preparation by the General Contractor (who shall be so
obligated pursuant to the terms of its contract with Developer) of a handbook and provide basic
training to Owner with respect to the operation of systems installed within the Rental Housing.
Such handbook and basic training shall be provided to Owner at a mutually acceptable time.
2.11. Retention of Documents and Records. Developer shall assemble and
retain all contracts, agreements and other records and data relative to the Project, as may be
necessary to carry out Developer's obligations hereunder, and such other records and data as are
typically retained by Developer and construction and property managers for similar projects,
including, without limitation, certificates and policies of insurance from Consultants and
subcontractors. All documents to be maintained by Developer under this Agreement shall be
available for inspection and/or copying by Owner at reasonable times upon advance notice to
Developer.
2.12. Protection and Safetv. Developer shall oversee General Contractor, who
shall have the responsibility to take such reasonable actions as are reasonably necessary to
maintain adequate protection of the Project from damage, injury or loss, and Developer shall use
its reasonable, good faith efforts to coordinate with the General Contractor in taking reasonable
precautions for the safety of persons performing work on the Project. All agreements prepared
by Developer shall require the General Contractor and all subcontractors to comply with all
applicable provisions of federal, state and local safety laws and building codes and standards.
2.13. Coordination of Owner Inspection and Other Rip-hts. Developer shall
coordinate with Owner and permit Owner, at reasonable times, upon reasonable prior notice, to
inspect the Project and inspect and audit Developer's records relating to the Project, to consult
with Developer's Project personnel, to attend Project meetings, and to post such advertisements,
signs or notices as Owner may deem desirable at or in the vicinity of the Project.
2.14. Ancillary Construction Services. In addition to the specific duties
described in this Agreement, to the extent required by the Development and Construction Plan.
12281-00003-1477196 7
Developer shall perform such other reasonable services as may be necessary to complete the
development and construction of the Project.
2.15. Excluded Services. Notwithstanding anything herein to the contrary,
Developer shall not be responsible for arranging, recommending or procuring construction
financing or funding for the Project or any portion thereof. Developer shall have no
responsibility for the ongoing leasing or management of the Rental Housing, following its
completion; provided, however, Developer shall be responsible for managing, overseeing,
coordinating with legal counsel and otherwise handling (subject to Owner's approval, which may
be withheld in Owner's reasonable discretion) all material disputes or issues concerning alleged
construction defects (i) relating to the Rental Housing which arise within one (1) year following
the completion date set forth in the Partial Certificate of Completion therefor, and (ii) relating to
the For -Sale Housing which arise within one (1) year following the completion date set forth in
the Partial Certificate of Completion therefor.
3. Marketing and Sale of For -Sale Housing.
3.1. Sales and Marketing Plan. Developer shall assist in the marketing and
sale of the For -Sale Housing in accordance with the Sales and Marketing Plan attached as
Exhibit B.4, as same may be modified and refined by the parties.
3.2. Consultation and Recommendations. Developer shall consult with Owner
and shall make recommendations to Owner as Owner may request, or as may be necessary from
time to time in connection with the timely and efficient marketing and sale of the For -Sale
Housing. Developer shall meet with Owner and Owner's representatives and consultants from
time to time to review, and if requested by Owner, to modify, the Sales and Marketing Plan,
which modifications shall be subject to the prior written approval of Owner. which approval
shall not be unreasonably withheld. Developer shall use its reasonable, good faith efforts on a
continuing basis to sell all of the For -Sale residences to purchasers who qualify as low or
moderate income households under state law in the ratios established in the Sales and Marketing
Plan, and who are otherwise acceptable to Owner in the exercise of its sole discretion.
3.3. Purchase and Sale Agreement Forms. All purchase and sale agreements to
be executed with respect to the For -Sale Housing shall be in a form reasonably acceptable to
Owner.
3.4. Purchaser Evaluation. Developer shall use its good faith efforts to obtain
(at Developer's expense) reasonably necessary financial information from each prospective
purchaser to enable Developer and Owner to determine whether such prospective purchaser is a
qualifying purchaser under the low and moderate income requirements under the Sales and
Marketing Plan. If Developer proposes that a purchase and sale agreement be entered into with a
prospective purchaser, Developer shall, at that time, provide to Owner all financial information
which Developer has obtained with respect to such purchaser, including income tax returns and
all other relevant information for determining purchaser eligibility.
3.5. Purchase and Sale Agreement Execution. Owner shall receive copies of
all material correspondence between Developer and any prospective purchaser. All purchase and
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sale agreements presented to Owner for approval shall be complete and shall be carefully
prepared and reviewed by Developer. Only Owner shall have the authority to execute any
purchase and sale agreement or any other agreement with respect to the transfer of the For -Sale
Housing residences or the use, occupancy or control thereof. Owner shall have the right, at any
time (even after execution of a purchase and sale agreement by a prospective purchaser), in its
sole and absolute discretion, to refuse to execute a purchase and sale agreement with any
prospective purchaser. Developer shall provide Owner with sales status and progress reports at
the monthly meetings referenced in Section L6 above.
3.6. Limitations on Develop_ er Concernine Sales Materials. Developer shall
not use or permit to be used any promotional material or promotional aids for the sale of the
For -Sale Housing residences other than those which have been approved in writing by Owner.
Without limiting the generality of the foregoing, Developer shall not use any form of agreement
or document except those furnished to Developer by Owner or previously approved by Owner in
writing. Developer shall have no authority to make, amend, modify, alter, add to, delete from or
otherwise change any contract or agreement executed by Owner, nor shall Developer authorize,
make or approve any alteration to or change in any purchase and sale agreement form,
promotional material or other marketing and sale material previously approved by Owner,
without Owner's prior written consent in each instance. No employee, agent or representative of
Developer shall be empowered or authorized to make any material representation to any
prospective purchaser or other person or entity unless the same is contained in the written
marketing and sale literature previously approved in writing by Owner.
3.7. Compliance With Rules and Rea;ulations. Developer shall fully, comply,
with such reasonable written rules, regulations and policies respecting the sale of the For -Sale
Housing residences as Owner may establish in writing from time to time or as may be required
by governmental authorities having jurisdiction over such matters. Developer shall cause each of
its employees to comply with such written rules, regulations and policies.
3.8. Ancillary Marketing and Sales Services. In addition to the specific duties
and obligations described in this Agreement, to the extent required by the Sales and Marketing
Plan, Developer shall perform such other reasonable services as may be necessary with respect to
the marketing and sale of the For -Sale Housing residences.
4. Compensation of Developer.
4.1. Stipulated Sum. Owner shall pay to Developer for the performance of
services under this Agreement ("Developer's Fee") and the costs of development and
construction of the Project and the marketing and sale of the For -Sale Housing ("Proiect Costs")
the aggregate sum of Twenty -Five Million, Six Hundred Eighty -Three Thousand, Two Hundred
Seventy -Six Dollars ($25,683,276) (the "Stipulated Sum"), as itemized in the Project Budget.
The following Project Costs. for which Owner is responsible, are expressly
excluded from the Stipulated Sum:
(a) Owner approved changes to design andlor engineering
specifications;
HEI
12281-00003-1477196 7
(b) Owner approved changes to Developer's scope of work;
(c) Owner Delays (as defined in Section 8.12 hereof);
(d) Delays due to inclement weather conditions that are equivalent to
or more severe than a 10-year storm event, with reference to the seasonal records of the NOAA
for the Palm Desert area during such period, and that have an adverse effect on the timing of
Project activities;
(e) Force Majeure delays (as defined in Section 8.11 hereof);
(0 Any additional costs or penalties if the Project is determined to be
subject to state prevailing wage laws or public bid procedures;
(g) Insurance premiums for coverage in excess of required minimums;
(h) Construction cost increases, if any, as permitted under Section F of
Exhibit B.3; and
(i) Increases in public agencies' permit and/or impact fees effective as
of April 19, 2005.
4.2. Payment. The Stipulated Sum shall be paid by Owner to Developer as
follows:
(a) General Contractor Proiect Costs: As the work is billed by the
General Contractor, provided that such billings accurately reflect the progress percentage of the
Work completed and meet the Application for Payment procedures described in Exhibit D of this
Agreement.
(b) Other Proiect Costs: As the work is billed, provided that such
billings meet the Application for Payment procedures described in Exhibit D of this Agreement.
(c) Developer's Fee:
(i) Twenty-two (22) consecutive equal monthly installments of
Thirty -One Thousand Sixty Dollars ($31,060) due and payable on the first (Is`) day of each
calendar month, commencing on the first full calendar month following the Execution Date of
this Agreement, and
(ii) The balance as follows:
a) Upon completion of Stage I improvements (as
defined in the Business Plan): $ 98,745
b) Upon completion of preparation of Owner's
homebuyer loan and sales documentation for the
For -Sale Housing: $ 98,745
12281-00003-1477196 7
c)
Upon completion of construction of the Rental
Housing (as defined in Section 1.4 hereof)
$ 98,745
d)
Upon the closing of the first sale of all Phase 1
(as defined in the Business Plan) For Sale Housing
residences
$ 98,745
e)
Upon the closing of the first sale of all Phase 2
(as defined in the Business Plan) For -Sale
Housing residences
$ 98,745
f)
Upon the closing of the first sale of all Phase 3 (as
defined in the Business Plan) For -Sale Housing
residences
$ 98,745
g)
Ninety (90) days after the closing of the first
sale of all Phase 3 (as defined in the Business Plan)
For -Sale Housing residences
$ 90,810
5. Apencv Oblieations.
5.1. Owner of the Site. Owner acquired the Real Property in 1998 and, since
such time, has had full control and possession thereof. Owner shall continue to hold fee title to
the Real Property throughout the development and construction period for the Project, and, upon
completion, shall own and manage the Rental Housing and shall timely transfer to individual
purchasers the For -Sale Housing residences.
5.2. Grant of Access. From and after the Execution Date of this Agreement,
Owner hereby grants to Developer, the General Contractor, the Architects and the Consultants
and all other parties involved in the Work on the Real Property and the marketing and sale of the
For -Sale Housing, the right of entry and continuous access to the Site throughout the term of this
Agreement.
5.3. Prompt Owner Performance and Coordination with Developer.
(a) Owner acknowledges and agrees that the implementation of this
Agreement requires continuous and direct coordination with Developer and the prompt and
expeditious performance of Owner's responsibilities, including without limitation the review and
approval of documents, proposals, materials, change orders, Applications for Payment and
similar items. The Project Budget and the Project Schedule are predicated upon such prompt
action and efficient coordination with Developer by Owner. Owner agrees to reasonably assist
in implementing this Agreement and to promptly perform Owner's obligations under the
Business Plan.
(b) Within five (5) business days after the Execution Date, Owner
shall designate Owner's Project Manager ("Owner's Proiect Manap-er") for the Project, who,
under the supervision of Lauri Aylaian, shall be responsible for coordinating with Developer on
behalf of Owner. Owner shall devise a written communication protocol and plan. reasonably
acceptable to Developer, to ensure that items and issues are efficiently addressed.
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5.4. Attendance at Proeress Meetines. To the extent feasible, Owner's Project
Manager shall attend all Project progress meetings, as described in Section 1.6 hereof: and shall
be responsible for advising Owner and, to the extent applicable, the City of the results of such
progress meetings.
5.5. Approval of Plans and Documents. Except as otherwise provided in
Sections 2.8 and 2.9, to the extent that Owner approval is required under this Agreement, within
five (5) business days after delivery to Owner. Owner shall review each submittal by Developer
in a prompt and expeditious manner and shall notify Developer in writing of Owner approval or,
in the case of disapproval, the specific basis for such disapproval and the suggested means to
cure such basis. Except to the extent expressly stated to the contrary in this Agreement,
approvals by Owner shall not be unreasonably withheld or delayed.
5.6. Owner's Preparation of Contract Documents. Owner has caused, or will
cause, the preparation and delivery to Owner of the Owner's Documents, including (i) all
Construction Documents (as listed in Section C of Exhibit B.1) for the Stage I Improvements (as
defined in the Business Plan) and the Rental Housing, and (ii) schematic drawings for the
For -Sale Housing, as listed in Section C of Exhibit B.1. Owner acknowledges and agrees that
Owner shall be responsible for the quality and utility of the Owner Documents, and that, subject
to Section 2.6 hereof,. Developer shall bear no responsibility therefor.
5.7. Owner Cooperation and Assistance. Owner acknowledges and agrees that
the Business Plan is predicated upon timely action by the City in reviewing and acting upon
documents and submittals for the Project, including without limitation the Remaining Approvals.
Owner agrees to assist Developer, to the extent feasible, in the processing by the City and any
other governmental agencies of the Remaining Approvals.
5.8. Approval of Proposed Modifications to the Business Plan. Owner
acknowledges and agrees that various aspects of the Business Plan and the Project are anticipated
to evolve and require modification and refinement during term of this Agreement. Owner agrees
to consider in good faith any such requests by Developer and to cooperate in addressing
unexpected circumstances consistent with the intent and objectives of the Agreement.
5.9. Establishment of Ratio of Low and Moderate Income Purchaser Elieible
Units. Owner acknowledges and agrees that the Project Budget, the Project Schedule and the
Business Plan are predicated upon the ratio of low and moderate income purchaser eligible units
within the Project specified in Section G of the Construction and Development Plan. Any
adjustment to such ratio may require modifications to the Project Budget, the Project Schedule
and the Business Plan.
5.10. Owner Financine. Owner shall be responsible for (i) timely providing
adequate subsidies in the form of deferred loans to low and moderate income purchasers of the
For -Sale Housing and (ii) for timely obtaining and providing all Project funding and financing.
5.11. Stipulated Sum Payments. Owner shall promptly make all payments
specified in Section 4 hereof and shall review and approve all Applications for Payment in
accordance with the requirements of Exhibit D. Agency acknowledges and agrees that the
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12281-00003-1477196 7
timely payment of the Project Costs is necessary in order to assure timely payment of the
General Contractor, the Architects and the Consultants and to avoid the recordation of stop
payment notices against the Site to secure such payments, and Owner shall fully indemnify
Developer against any third party claims asserting costs and liabilities for the untimely payment
of Project Costs to Developer.
5.12. Owner Representations and Warranties. Owner hereby represents and
warrants the following to Developer as of the Execution Date of this Agreement:
(a) Compliance With Laws. To the actual knowledge of Owner, the
Real Property is not in violation, and Owner has not received, any request for information or any
notice that Owner or the Real Property (or any portion thereof) is in violation, of (i) any federal,
state or local law, ordinance, rule, regulation, code or order or (ii) any requirement imposed
under any covenants, conditions, restrictions, easements, agreements or other rights affecting the
Real Property, or that any investigation of such matters has been commenced and is continuing
or is contemplated.
(b) Entitlements. All land use approvals and entitlements required for
the construction, completion, ownership, use and occupancy of the Real Property for the Project,
other than the Remaining Approvals, have been obtained in accordance with applicable law, are
fully paid for, are in effect and good standing from all appropriate authorities, are no longer
subject to legal challenge under the California Environmental Quality Act or upon other basis,
and will not be revoked, invalidated, violated or otherwise adversely affected by the
consummation of this Agreement, and Owner and the Real Property are in compliance with all
requirements and conditions of same.
(c) No Government Proceedinas. To the actual knowledge of Owner,
there are no existing, pending or contemplated or threatened condemnation, incorporation,
annexation or moratorium proceedings affecting the Real Property (or any portion thereof). To
the actual knowledge of Owner, there are no existing, pending or contemplated or threatened
governmental rules, regulations, plans, studies or efforts, or court orders or decisions, which do
or could adversely affect the use or development of the Project on the Real Property.
(d) Condition of Property. To the actual knowledge of Owner, there
are no defects or conditions, including structural defects and/or soil conditions, in or otherwise
affecting the Real Property which impair or could impair the use or development of the Project
on the Real Property.
(e) No Prevailine Wap-e Reauirements. The funding of the Project
Costs from Owner's housing set aside fund does not subject the Project to compliance with state
laws requiring public bidding and/or the payment of prevailing wages.
(f) Environmental Matters.
(i) Definitions. The term "Hazardous Materials" means any
product, substance, chemical, material or waste whose presence, nature, quantity and/or intensity
of existence, use, manufacture, processing, treatment, storage, disposal, transportation, spill,
release or effect, either by itself or in combination with other materials on or expected to be on
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12281-00003-1477196 7
the Property, is either (A) potentially injurious to public health, safety, welfare. or the
environment, or to the Property; (B) regulated, monitored, or subject to reporting by any
governmental authority; or (C) a basis for potential liability to any governmental agency or a
third party under any applicable statute or common law theory. Without limiting the foregoing,
the term "Hazardous Materials" includes, but is not limited to, hydrocarbons, petroleum,
gasoline, crude oil or any products or byproducts thereof. The term "Environmental Laws"
means all federal, state and local laws, ordinances, rules, regulations, codes or orders, including,
without limitation, any requirement imposed under any permits, licenses, judgments, decrees,
agreements or recorded covenants, conditions, restrictions or easements, the purpose of which is
to protect the environment, human health, public safety or welfare, or which pertain to
Hazardous Materials.
(ii) Presence and Use. To the actual knowledge of Owner, no
person has used, generated, stored, spilled or released any Hazardous Materials on the Real
Property, or transported Hazardous Materials to or from the Real Property, and no person has
manufactured, processed, treated or disposed of Hazardous Materials on the Real Property.
(iii)Com pliance. To the actual knowledge of Owner, no
condition exists on the Real Property arising out of or related to the presence of Hazardous
Materials on the Real Property that may require remediation in order to prevent damage or harm
to human health, safety, or the environment, nor has any event occurred with respect to the Real
Property that upon the failure to act, the passage of time or the giving of notice would give rise to
liability under any Environmental Law.
(g) Actual Knowledl?e. For purposes of this Section 5.12, the "actual
knowledge of Owner' shall be deemed to mean the actual knowledge of David Yrigoyen.
Director of Redevelopment/Housing, and Lauri Aylaian, Redevelopment Manager.
5.13. Ancillary Owner Oblieations. In addition to the specific duties and
obligations described in this Agreement, to the extent provided in the Business Plan, Owner shall
take such reasonable actions as may be necessary to perform Owner's obligations with respect to
the development and construction of the Project and the sale of the For -Sale Housing.
6. Defaults, Remedies and Termination.
6.1. Events of Default. Each of the following events shall constitute an "Event
of Default":
(a) Subject to extensions of time set forth in Sections 8.11 and 8.12,
failure by either party to observe, perform or comply with any material term, covenant,
agreement or condition of this Agreement (other than Owner's obligations under Section 2.9
and 4 hereof) which is to be observed, performed or complied with by such party hereunder.
including without limitation Developer's obligations under Section 1.26i) hereof, if such failure
shall continue uncured for fifteen (15) calendar days after delivery by the other party of written
notice of such failure specifying the nature of such failure, unless such failure is not susceptible
of being cured within said fifteen (15) calendar day period, in which event such a failure shall
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12281-00003-1477196 7
not constitute an Event of Default if curative action is commenced within said fifteen (15) day
period and thereafter diligently prosecuted to completion.
(b) Failure by Owner to timely process and deliver a payment as
provided in Sections 2.9 and 4 hereof;
(c) Either party shall commit any fraud, material misrepresentation,
breach of fiduciary duty, or willful misconduct in the performance of its obligations hereunder.
(d) Either party shall (i) apply for or consent in writing to the
appointment of a receiver, trustee, or liquidator of all or substantially all of its assets; (ii) file a
voluntary petition in bankruptcy or admit in writing its inability to pay its debts as they become
due; (iii) make a general assignment for the benefit of creditors; (iv) file a petition or an answer
seeking reorganization or an arrangement with creditors or take advantage of any insolvency
law; or (v) file an answer admitting the material allegations of a petition filed against it in any
bankruptcy, reorganization, or insolvency proceeding; or if any voluntary petition in bankruptcy
or similar proceeding shall be filed against Developer seeking its reorganization, liquidation, or
appointment of a receiver, trustee, or liquidator for all or substantially all of its assets.
6.2. Termination Upon Event of Default. At its option, in the event of the
occurrence of an Event of Default by the other party, the non -defaulting party shall have the right
to terminate this Agreement upon delivery of written notice to the defaulting party.
6.3. Termination Upon Death or Disability. Owner shall have the right to
terminate this Agreement upon fifteen (15) days' written notice to Developer should Loren
Bloch fail to be able, due to physical disability or death, to provide the services required of him
pursuant to this Agreement, unless Owner, in Owner's reasonable discretion approves of a
substitute for such individual. Any disability preventing such party from performing duties
under this Agreement for a continuous period of thirty (30) days shall be deemed to constitute a
failure by such party to provide the services required of him pursuant to this Agreement.
6.4. Termination Upon Abandonment or Suspension of the Proiect.
Notwithstanding anything to the contrary contained in this Agreement. Owner shall have the
right, upon thirty (30) days' written notice to Developer, to terminate this Agreement in
connection with an election by Owner to abandon the Project or to suspend development of the
Project for a period of not less than one (1) year.
6.5. Termination Upon Completion. This Agreement shall terminate upon the
later of (a) the date ninety (90) days following the later to occur of (i) the completion of the
Rental Housing, as defined in Section 1.4 hereof, and (ii) the closing of the first sale of the final
For -Sale Housing residence to be sold, and (b) the date five (5) business days after the date of
delivery by Owner to Developer of the final payment under Section 4.2(c)(ii)(Q) hereof.
6.6. Actions Subsequent to Termination.
(a) Within fifteen (15) calendar days after any termination of this
Agreement other than for an Event of Default by Developer, Owner shall pay to Developer all
unpaid Project Costs and Developer's Fees for work performed or materials provided prior to the
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effective termination date. If such termination was made pursuant to Section 6.4 hereof, in
recognition of the lost opportunity costs and resources committed by Developer to the Project.
Owner shall pay to Developer an additional sum equal to fifty percent (50%) of the remaining
unpaid balance of the total Developer's Fees.
(b) Within fifteen (15) calendar days after termination of this
Agreement by Owner based on an Event of Default by Developer, Owner shall deposit and retain
in an escrow account pending resolution pursuant to Section 6.7 hereof of the Event of Default
claim against Developer, funds in an amount equivalent to all unpaid Project Costs and
Developer's Fees for work performed or materials provided prior to the effective termination
date.
(c) Upon payment or deposit of funds by Owner in accordance with
(a) or (b) above and delivery to Developer, in form reasonably acceptable to Developer, of a
release and indemnity agreement for liability from and after such termination date relating to the
Project and the Real Property (but, in the case of a termination based on an Event of Default by
Developer, reserving any claims by Owner relating to such Event of Default). Developer shall
promptly (i) execute and, if appropriate, record such instruments as Owner may require to
transfer to Owner all of the Developer's interest and rights from and after the termination date in
and to the Contract Documents, all warranties and guaranties, any and all improvements
constructed or placed upon the Real Property by Developer, and all other contracts and
agreements to which the Developer is a party and which pertain to the Project, and (ii) account
for and deliver to Owner or to such other person as Owner shall designate in writing, all
materials, supplies, equipment, keys, contracts, documents and books and records pertaining to
this Agreement or to the Project, whether in possession of Developer or a party engaged by the
Developer pursuant to the provisions hereof. Developer shall also furnish all such information,
take all such other action and shall cooperate with Owner as Owner shall reasonably require in
order to effectuate an orderly and systematic termination of Developer's duties and activities
hereunder. All personal property (including capital equipment, hardware, trade and non -trade
fixtures, materials and supplies) acquired pursuant to this Agreement, whether paid for directly
by Owner or by way of reimbursement to Developer, shall at all times be the personal property
of Owner and shall remain on the Real Property after such termination.
6.7. Dispute Resolution. [SUBJECT TO FURTHER DISCUSSION]
(a) ADR Procedure. Any dispute under the Contract Documents
involving an amount that is less than Two Hundred Fifty Thousand Dollars ($250,000) shall be
resolved through the alternative dispute resolution procedure (the "ADR Procedure") as
described in this Section 6.7(a).
(i) in the event of a dispute to be resolved through the ADR
Procedure, either party may notify the other in writing (the "ADR Notice") that such party elects
to have the dispute resolved by the ADR Procedure. ADR Procedures noticed in order to resolve
disputes which involve structural or exterior wall issues or mechanical, electrical, plumbing,
elevator, fire, life safety and other similar systems shall be resolved by . ADR
Procedures noticed in order to resolve disputes which do not involve such issues shall be
resolved by . Each of said companies is herein called the "Arbitrator" as
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12281-00003-1477196 7
applicable to the dispute in question. A copy of the ADR Notice shall also be delivered to
or , as appropriate, given the subject matter of the ADR
Procedure. The ADR Notice shall (a) describe generally the nature of the dispute such that the
Arbitrator will be able to determine which, if any, of the Arbitrator's consultants the Arbitrator
may need in order to assist in the resolution of the dispute, and (b) a proposed date and time at
which the duly authorized representatives of the Owner and Developer and the Arbitrator will
meet (the "ADR Meeting") in order to resolve the dispute. Said date and time must be no less
than two (2) full business days from delivery of the ADR Notice and must be on a business day.
Neither Owner nor Developer may object to the date and time of any ADR Meeting which
complies with the foregoing requirements. If, however, the Arbitrator is unable to attend the
ADR Meeting at the time designated in the ADR Notice, or if the Arbitrator requires a consultant
to attend the ADR Meeting and cannot arrange to have such consultant present at such time, then
the Arbitrator will so notify Owner and Developer which notice shall set forth the first day and
time at which the Arbitrator can meet on a business day, and the Arbitrator and the ADR
Meeting shall be held at such time and place.
(ii) All ADR Meetings shall be held at the Site unless the
dispute to be resolved requires inspection of materials, samples. mock-ups or similar items which
are located elsewhere and cannot reasonably be brought to the Site. At the ADR Meeting, each
party shall explain to the Arbitrator its position with respect to the dispute and shall answer such
questions as the Arbitrator may pose. The Arbitrator shall have the authority to determine the
length of time permitted each party to make its presentation. Rules of evidence and discovery
shall not be applicable to the ADR Procedure. With respect to disputes which involve matters
beyond the area of expertise of the Arbitrator, the Arbitrator shall engage one or more
consultants to assist the Arbitrator in resolving the dispute.
(iii) If reasonably possible, the Arbitrator shall render its
decision at the ADR Meeting or within one (1) business day thereafter and shall immediately
notify the parties of such decision. Such decision shall be confirmed in writing and shall be
conclusive and binding on the parties except that the parties may petition to vacate or correct any
decision to a court of law upon the same grounds that an arbitration award may be vacated or
corrected under the California Code of Civil Procedure. The fees of the Arbitrator shall be paid
equally by the parties.
(iv) Owner and Developer shall and do hereby agree to
indemnify the Arbitrator for, and hold the Arbitrator harmless from and against, any and all
claims, loss, cost, damage, liability or expense including, without limitation, reasonable
attorneys' fees and costs, arising out of or in connection with any decision rendered by the
Arbitrator in good faith. If the Arbitrator fails or refuses at any time to act under this
Section 6.7(a), Owner and Developer shall, within five (5) business days after such failure, agree
upon another Arbitrator. If the parties are unable to so agree in said five (5) business day period,
then either party may thereafter request appointment of an architect to serve are the Arbitrator by
the then highest officer of the Riverside County Chapter of the American Institute of Architects.
Neither the Arbitrator designated above nor any Arbitrator thereafter agreed upon or designated
pursuant to this provision, shall have had any employment, agency relationship, business
affiliation, or similar relationship with Owner or Developer for a period of ten (10) years
preceding the Execution Date.
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(b) Referee Procedure. ANY DISPUTE ARISING FROM OR IN
CONNECTION WITH THIS AGREEMENT FOR WHICH THE ADR PROCEDURE IS NOT
PROVIDED SHALL BE HEARD AND DETERMINED BY A REFEREE PURSUANT TO
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638 ET SEQ. IN EFFECT AS OF
THE DATE HEREOF. THE VENUE OF ANY PROCEEDING HEREUNDER SHALL BE IN
RIVERSIDE COUNTY, CALIFORNIA (UNLESS CHANGED BY ORDER OF THE
REFEREE).
(i) THE PARTY SEEKING TO RESOLVE THE DISPUTE
SHALL SERVE A COMPLAINT OR STATEMENT OF CLAIM ON THE OTHER PARTY,
DESCRIBING THE MATTERS IN DISPUTE IN THE MANNER PRESCRIBED FOR
GIVING NOTICE HEREUNDER. WITHIN FIVE (5) DAYS AFTER THE SERVICE OF THE
COMPLAINT OR STATEMENT OF THE COMPLAINT OR STATEMENT OF CLAIM, THE
PARTY SEEKING RELIEF SHALL MAKE A WRITTEN REQUEST FOR THE SPECIFIC
DESIGNATION OF A REFEREE TO TRY THE DISPUTE. THEREAFTER THE PARTIES
SHALL USE THEIR BEST EFFORTS TO AGREE UPON THE SELECTION OF A
REFEREE. IF THE PARTIES ARE UNABLE TO AGREE UPON A REFEREE WITHIN TEN
(10) BUSINESS DAYS AFTER A WRITTEN REQUEST TO DO SO BY ANY PARTY,
THEN ANY PARTY MAY PETITION THE PRESIDING JUDGE OF THE RIVERSIDE
COUNTY SUPERIOR COURT TO APPOINT A REFEREE. THE PRESIDING JUDGE
SHALL HAVE THE POWER TO ASSIGN SAID REQUEST TO SUCH JUDGE OF THE
SUPERIOR COURT AS THE PRESIDING JUDGE DEEMS APPROPRIATE. FOR THE
GUIDANCE OF THE JUDGE MAKING THE APPOINTMENT OF SAID REFEREE, THE
PARTIES AGREE THAT THE PERSON SO APPOINTED SHALL BE A RETIRED JUDGE.
(ii) THE PROVISIONS OF CALIFORNIA CODE OF CIVIL
PROCEDURE, SECTIONS 640, 641, 642, 643, 644,645 AND 645.1, SHALL BE
APPLICABLE TO DISPUTE RESOLUTION BY A REFEREE HEREUNDER. IN AN
EFFORT TO CLARIFY AND AMPLIFY THE PROVISIONS OF CALIFORNIA CODE OF
CIVIL PROCEDURE SECTIONS 644 AND 645, THE PARTIES AGREE THAT THE
REFEREE SHALL DECIDE THE DISPUTE SUBMITTED BY THE PARTIES FOR
DECISION IN THE SAME MANNER AS REQUIRED FOR A TRIAL BY COURT AS SET
FORTH IN CALIFORNIA CODE OF CIVIL PROCEDURE, SECTIONS 631.8 AND 632,
AND CALIFORNIA RULES OF COURT, RULE 232. THE REFEREE SHALL TRY AND
DECIDE THE DISPUTE ACCORDING TO AND BASED ON ALL OF THE SUBSTANTIVE
AND PROCEDURAL STATUTORY AND DECISIONAL LAW OF THE STATE OF
CALIFORNIA, UNLESS THE PARTIES STIPULATE TO THE CONTRARY. WHEN THE
REFEREE HAS DECIDED THE DISPUTE, THE REFEREE SHALL ALSO CAUSE THE
PREPARATION OF A JUDGMENT BASED ON SAID DECISION. THE JUDGMENT TO BE
ENTERED BY THE SUPERIOR COURT, BASED UPON THE DECISION OF THE
REFEREE, SHALL BE APPEALABLE IN THE SAME MANNER AS IF THE JUDGE
SIGNING THE JUDGMENT HAD TRIED THE CASE.
(iii) THE PARTIES SHALL DILIGENTLY COOPERATE
WITH ONE ANOTHER AND THE PERSON(S) APPOINTED TO RESOLVE THE DISPUTE,
AND SHALL PERFORM SUCH ACTS AS MAY BE NECESSARY TO OBTAIN A PROMPT
AND EXPEDITIOUS RESOLUTION OF THE DISPUTE. IF EITHER PARTY REFUSES TO
19
12281-00003-1477196 7
DILIGENTLY COOPERATE, AND THE OTHER PARTY, AFTER FIRST GIVING NOTICE
OF ITS INTENT TO RELY ON THE PROVISIONS OF THIS SECTION 6.7(b) INCURS
ADDITIONAL EXPENSES OR ATTORNEYS` FEES SOLELY AS A RESULT OF SUCH
FAILURE TO DILIGENTLY COOPERATE, THE REFEREE MAY AWARD SUCH
ADDITIONAL EXPENSES AND ATTORNEYS' FEES TO THE PARTY GIVING SUCH
NOTICE, EVEN IF SUCH PARTY IS NOT THE PREVAILING PARTY IN THE DISPUTE.
(iv) THE COST OF THE PROCEEDING SHALL INITIALLY
BE BORNE EQUALLY BY THE PARTIES TO THE DISPUTE, BUT THE PREVAILING
PARTY IN SUCH PROCEEDINGS SHALL BE ENTITLED TO RECOVER, IN ADDITION
TO ATTORNEYS' FEES AND ALL OTHER COSTS, ITS CONTRIBUTION FOR THE COST
OF THE REFEREE AS AN ITEM OF RECOVERABLE COSTS. IF EITHER PARTY
REFUSES TO PAY ITS SHARE OF THE COSTS OF THE PROCEEDING, AT THE TIME(S)
REQUIRED, THE OTHER PARTY MAY DO SO, IN WHICH EVENT THAT PARTY WILL
BE ENTITLED TO RECOVER (OR OFFSET) THE AMOUNT ADVANCED, WITH
INTEREST, EVEN 1F THAT PARTY IS NOT THE PREVAILING PARTY. THE REFEREE
SHALL INCLUDE SUCH COSTS IN HIS JUDGMENT OR AWARD.
(v) OWNER AND DEVELOPER HEREBY EXPRESSLY
WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE
OF ACTION, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS
AGREEMENT, OR IN ANY WAY CONNECTED WITH, OR RELATED TO, OR
INCIDENTAL TO, THE DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS
AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF
WHETHER SOUNDING IN CONTRACT. TORT, OR OTHERWISE. TO THE EXTENT
THEY MAY LEGALLY DO SO, OWNER AND DEVELOPER HEREBY AGREE THAT
ANY SUCH CLAIM. DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING
SHALL BE DECIDED BY JUDICIAL REFERENCE IN THE MANNER 'DESCRIBED IN
THIS SECTION 6.7(b) AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION 6.7(b) WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES
HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY AND
AGREEMENT TO ABIDE BY THE PROCEDURES SET FORTH HEREIN.
OWNER'S INITIALS DEVELOPER'S INITIALS
7. Insurance Provisions.
7.1. Insurance Limits. Developer shall maintain at its sole cost and expense,
insurance coverage which complies with the following minimum requirements:
(a) Worker's Compensation Insurance in accordance with applicable
law, and Employer's Liability Insurance, with limits of not less than One Million Dollars
($1,000,000). Developer's Worker's Compensation Insurance shall in all respects comply with
the requirements of California law.
12281-00003-1477196 7
(b) Comprehensive General Liability Insurance, including coverage
for bodily injury, property damage, personal injury (employee and contractual liability
exclusions deleted), products and completed operations, contractual liability, owner's protective
liability, and broad form property damage, with the following limits: One Million Dollars
($1,000,000) for each occurrence, combined single limit for bodily injury, property damage and
personal injury; and Two Million Dollars ($2,000,000) aggregate for personal injury and
property damage for products and completed operations.
(c) Professional Liability Insurance ("errors and omissions") relating
to Developers acts with respect to the Project with the following limits of liability: One Million
Dollars ($1,000,000) per claim; Two Million Dollars ($2,000,000) in the aggregate. Developer
agrees to maintain the above -required minimum of Professional Liability coverage in force for a
period of three (3) years following completion of the Project.
(d) The maximum deductible amount under any policy of insurance
required pursuant to this Section 7.1 shall not exceed One Hundred Thousand Dollars
($100,000).
7.2. Umbrella Policies and Owner as Additional Insured. The limits of liability
of the insurance coverage required pursuant to Section 7.1 may be provided by any combination
of primary insurance policies and excess liability ("umbrella") insurance policies; provided the
coverage required is not diminished thereby. Developer agrees to procure the addition of Owner
and Owner's officers, elected and/or appointed officials and employees as additional named
insureds to the Comprehensive General Liability Insurance policy maintained by Developer
which shall cover losses. costs, expenses, damages and attorneys' fees resulting from or arising
out of the negligence or conduct of Developer, its staff members, employees, agents and
representatives.
7.3. Maintenance of Insurance By Others.
(a) All agreements with the Architects, Consultants, General
Contractor and subcontractors shall, unless otherwise approved by Owner, require such parties
and their subcontractors performing work at the Project to procure and maintain, at each such
party's own cost and expense:
(i) A policy of Worker's Compensation Insurance in
accordance with applicable law, and Employer's Liability Insurance with limits of not less than
One Million Dollars ($1,000,000).
(ii) Comprehensive General Liability Insurance, including
coverage for bodily injury, property damage, personal injury (employee and contractual liability
exclusions deleted) products and completed operations, contractual liability, owner's protective
liability and broad form property damage with the following limits of liability: One Million
Dollars ($1,000,000) for each occurrence, combined single limit for bodily injury, property
damage and personal injury; and Two Million Dollars ($2,000,000) aggregate for personal injury
and property damage for products and completed operations.
3
1228)-00003-1477196 7
(b) The agreements with the Architects and all Consultants shall
require such parties to maintain Professional Liability insurance (errors and omissions).
Professional Liability Insurance carried by such parties shall have liability limits of One Million
Dollars ($1,000,000) per claim; One Million Dollars ($1,000,000) in the aggregate. The
Architect and the Consultants shall maintain the above -required minimum of Professional
Liability coverage in force for a period of three (3) years following completion of the Project.
(c) The maximum deductible amount permitted under any policy of
insurance required pursuant to this Section 7.3 shall not exceed Fifty Thousand Dollars
($50,000).
(d) Owner and Owner's officers, elected and/or appointed officials and
employees shall be required to be named as additional insureds to the Comprehensive General
Liability Insurance policy required to be maintained pursuant to this Section 7.3 which shall
cover losses, costs, expenses, damages and attorneys' fees resulting from or arising out of the
negligence or conduct of the insured party, its staff members, employees, agents and
representatives.
7.4. Certificates and Cancellation. Developer shall promptly deliver to Owner
certificates of insurance, copies of insurance policies, or other evidence of the minimum levels of
insurance set forth above, as reasonably requested by Owner. The insurance policies required
under this Agreement shall provide that none of the required coverage may be canceled or
terminated without thirty (30) days' prior written notice to Owner.
7.5. Continued Coverage. Notwithstanding the expiration or early termination
of this Agreement, Developer shall maintain insurance coverage such that the insurance
provisions of this Agreement shall survive such expiration or early termination of this
Agreement and Developer's insurance carriers shall remain obligated under the policies for all
occurrences that arise that are within the scope of the requirements of insurance coverage set
forth in this Agreement.
7.6. Waiver of Subrop-ation. Owner and Developer hereby waive any rights
each may have against the other on account of any loss or damage occasioned to Owner or
Developer, as the case may be, arising from any risk covered by the insurance maintained under
this Agreement. Owner and Developer each, on behalf of their respective insurance companies,
waive any right of subrogation that such insurance company may have against Owner or
Developer, as the case may be, and each party shall obtain endorsements to such insurance
policies as are necessary to effectuate such waivers.
7.7. Insurance — General. All insurance required to be maintained pursuant to
this Section 7 shall be written by insurance companies admitted to do business in California and
having a rating of at least B+NI1 in the most recent edition of Best's Insurance Guide. At all
times during the term of this Agreement, Developer shall maintain on file with the City Clerk of
Palm Desert, a certificate (or certificates) of insurance in the form attached hereto as Exhibit E,
reflecting that the insurance policies required to be maintained pursuant to this Agreement are in
effect in the amounts required, naming the additional insureds required hereunder, and that the
policies cannot be canceled, modified or reduced except after thirty (30) days' notice by the
22
12281-00003-1477196 7
subject insurance carrier to Owner. All insurance maintained pursuant to this Agreement shall
be primary to any coverage otherwise available to Owner.
8. Miscellaneous Provisions.
8.1. AssiQnment. Developer may not voluntarily or involuntarily, directly or
indirectly, sell, assign, hypothecate. pledge or otherwise transfer or dispose of all or any portion
of its interest in this Agreement, or delegate any of Developer's obligations or duties hereunder,
to any third party without the prior written consent of Owner, which may be withheld in Owner's
sole discretion. Any attempted sale. assignment, hypothecation, pledge or other transfer without
such consent shall be void. For purposes of this Agreement, a sale or other transfer of a
controlling interest in Developer shall constitute an assignment of Developer's rights hereunder.
Owner may not sell, assign, hypothecate, pledge or otherwise transfer or dispose of all or any
portion of its interest in this Agreement or, prior to completion of the Rental Housing or the
For -Sale Housing, its interest in all or any portion of such Real Property so as to materially effect
the Project, the Project Costs, the Business Plan or Developer's activities, without the prior
written consent of Developer, which may be withheld in Developer's sole discretion.
8.2. Amendment. This Agreement may be amended from time to time only by
a writing executed by Owner and Developer.
8.3. Notices. The address of each of the parties shall for all purposes be as set
forth below, unless otherwise changed by the applicable party by notice to the other as provided
herein.
If to Owner: Palm Desert Redevelopment Agency
73-510 Fred Waring Drive
Palm Desert, California 92260
Attn.: Mr. David Yrigoyen
Phone: (760) 346-0611
Fax: (760)341-6372
With a copy to: Richards, Watson & Gershon
355 South Grand Avenue, 40th Floor
Los Angeles, California 90071
Attn.: Jim G. Grayson, Esq.
Phone: (213) 626-8484
Fax: (213)626-0078
If to Developer: ComDyn PD, LLC
2800 28th Street, Suite 206
Santa Monica, California 90405
Ann: Loren Bloch
Phone: (310) 399-9555
Fax: (310) 399-9777
23
12281-00003-1477196 7
With a copy to: Greenberg Glusker Fields Claman
Machtinger & Kinsella LLP
1900 Avenue of the Stars, Suite 2100
Los Angeles. California 90067
Attn: Elizabeth Watson. Esq.
Phone: (310) 201-7439
Fax: (310) 201-2339
Any notices, consents, offers, acceptances, elections, demands and other
communications required or provided by this Agreement shall be in writing and shall be deemed
to have been made or given (a) when personally served, (b) two (2) days after being placed in the
United States mail, postage prepaid, registered or certified and properly addressed, or (c) when
deposited with a recognized overnight delivery service which maintains delivery records (such as
Federal Express).
8.4. Attorneys' Fees. In any judicial action between the parties to enforce any
of the provisions of this Agreement or any right of any party under this Agreement, regardless of
whether such action or proceeding is prosecuted to judgment and in addition to any other
remedy, the unsuccessful party shall pay to the prevailing party all costs and expenses, including
reasonable attorneys' fees, incurred therein by the prevailing party.
8.5. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all prior agreements
and negotiations between the parties with respect thereto.
8.6. Governing Law. This Agreement shall be enforced, governed by, and
construed in accordance with the laws of the State of California.
8.7. Severability. If any provision of this Agreement shall be invalid or
unenforceable for any reason and to any extent, the remainder of this Agreement shall not be
affected thereby, but shall be enforced to the greatest extent permitted by law.
8.8. No Waiver. No failure or delay of a party in the exercise of any right
given to such party hereunder or by law shall constitute a waiver thereof, nor shall any single or
partial exercise of any such right preclude other further exercise thereof or of any other right.
The waiver by a party of any breach of any provision hereof shall not be deemed to be a waiver
of any subsequent breach thereof, or of any breach of any other provision hereof.
8.9. No Joint Venture. Owner shall not and does not by this Agreement in any
way or for any purpose become a partner of Developer in the conduct of its business, or
otherwise, or a joint venturer of or a member of a joint enterprise with Developer, it being
understood and agreed between Owner and Developer that Developer is and shall be, for all
purposes of this Agreement, an independent contractor of Owner.
8.10. Successors and Assigns. Subject to the provisions of Section 8.1, this
Agreement shall bind and inure to the benefit of the parties and their respective successors and
assigns.
24
12281-00003.1477196 7
8.11. Force Maieure. Except with respect to the dates set forth in Section 6.3,
any time limits provided for either party's performance under this Agreement shall be extended
for and throughout such additional period of time as such performance is prevented or delayed
due to strikes, lockouts, acts of God, wars, riots, civil insurrection or disturbance, abnormal force
of elements, fires, casualties, freight embargoes, delays due to the existence or remediation of
hazardous materials, litigation or alternative dispute resolution proceedings with third parties,
acts or inaction of any third party or other inabilities or causes beyond the parties' reasonable
control; provided, however, that in no event shall any such extension be deemed to have
occurred unless (i) the party whose performance is delayed shall have given notice to the other
party within fifteen (15) days after the occurrence of the event of delay, setting forth the facts
giving rise to such extension, and (ii) the applicable period or periods of time within which such
other party may exercise its rights hereunder shall be commensurately extended. The party
whose performance is delayed shall give prompt written notice to the other party of the cessation
of the event or condition giving rise to such delay.
8.12. Owner Delays. Developer's performance shall be excused and extended
to the extent of delays, failure to act or untimely action (each an "Owner Delay") by Owner
which affect the critical path schedule for the Project as reflected in the Business Plan.
Developer shall promptly notify Owner in writing of any occurrence or instance of Owner Delay
of which Developer becomes aware and of the implications of such Owner Delay on Developer's
ability to perform timely under this Agreement. In the event of an Owner Delay, Owner shall be
responsible for all resultant increases in Project Costs, and the Developer's Fee shall be
increased to compensate Developer for all costs and expenses of such Owner Delay, including
without limitation Developer's overhead costs, as documented with appropriate substantiation by
Developer.
8.13. Indemnitv.
(a) Developer's Indemnitv. To the fullest extent permitted by law, but
subject to the limitations on liability set forth in Section 8.22 below, Developer agrees that
neither Owner nor Owner's officers, elected and/or appointed officials or employees shall be
liable for any damage or liability of any kind or for any injury to or death of persons or damage
to property of Developer or any other person from any cause whatsoever related to or arising out
of any Event of Default under this Agreement by Developer and/or any negligence or willful
misconduct by Developer, or any of its staff members, employees, agents and/or representatives
in the carrying out of Developer's duties under this Agreement. Developer shall pay for, defend
(with an attorney reasonably approved by Owner), indemnify, and save Owner and Owner's
officers, elected and appointed officials and employees harmless against and from any real or
alleged damage or injury and from all claims, judgments, liabilities, costs and expenses,
including attorneys' fees and costs, arising out of or connected with the negligence or willful
misconduct by Developer, or any of its staff members, employees, agents and/or representatives,
in the carrying out of Developer's duties under this Agreement, and/or any Event of Default
under this Agreement by Developer; provided, however (and though Developer shall in all cases
accept any tender of defense of any action or proceeding in which Owner or an indemnified party
hereunder is named or made a party and/or commence the defense of Owner or an indemnified
party upon written notice of any allegation being made against such party and shall,
notwithstanding any allegations of negligence or misconduct on the part of such party, defend
25
12281-00003.1477196 7
such party as provided herein), Developer shall not be liable for such damage or injury (and shall
be reimbursed the costs of defense) to the extent and in the proportion that the same is ultimately
determined by a court of competent jurisdiction to be attributable to the negligence or willful
misconduct of such indemnified party. This obligation to indemnify shall include all of the
indemnified party's attorneys fees, litigation costs, investigation costs and court costs and all
other costs, expenses and liabilities incurred by such party or its counsel from the first notice that
any claim or demand is to be made or may be made. Developer's obligations under this
Section 8.13(a) shall survive the termination or expiration of this Agreement.
(b) Owner's Indemnitv. To the fullest extent permitted by law, but
subject to the limitations on liability set forth in Section 8.22 below, Owner agrees that neither
Developer nor Developer's officers, employees, or representatives shall be liable for any damage
or liability of any kind or for any injury to or death of persons or damage to property of Owner or
any other person from any cause whatsoever related to or arising out of any Event of Default
under this Agreement by Owner and/or any negligence or willful misconduct by Owner, or any
of its staff members, employees, agents and/or representatives in the carrying out of Owner's
duties under this Agreement, including, but not limited to, damages resulting from the use of
Owner's Documents or reliance upon the Existing Approvals. Owner shall pay for, defend (with
an attorney reasonably approved by Developer), indemnify, and save Developer and Developer's
officers, employees and representatives harmless against and from any real or alleged damage or
injury and from all claims, judgments, liabilities, costs and expenses, including attorneys' fees
and costs, arising out of or connected with the negligence or willful misconduct by Owner, or
any of its staff members, employees, agents and/or representatives, in the carrying out of
Owner's duties under this Agreement, and/or any Event of Default under this Agreement by
Owner; provided, however (and though Owner shall in all cases accept any tender of defense of
any action or proceeding in which Developer or an indemnified party hereunder is named or
made a party and/or commence the defense of Developer or an indemnified party upon written
notice of any allegation being made against such party and shall, notwithstanding any allegations
of negligence or misconduct on the part of such party, defend such party as provided herein),
Owner shall not be liable for such damage or injury (and shall be reimbursed the costs of
defense) to the extent and in the proportion that the same is ultimately determined by a court of
competent jurisdiction to be attributable to the negligence or willful misconduct of such
indemnified party. This obligation to indemnify shall include all of the indemnified party's
attorneys fees, litigation costs, investigation costs and court costs and all other costs, expenses
and liabilities incurred by such party or its counsel from the first notice that any claim or demand
is to be made or may be made. Owner's obligations under this Section 8.13(b) shall survive the
termination or expiration of this Agreement.
8.14. Additional Documents. Each party shall execute or cause to be executed
all such instruments or agreements as may be reasonably necessary in order to carry out the
purpose of this Agreement.
8.15. Ownership of Documents. All documents related to the development,
construction and operation of the Project, including, without limitation, all development plans,
specifications, blueprint, budget, books, records, promotional materials, lease, and purchase and
sale agreement forms shall be and remain the sole and exclusive property of Owner, and
26
12281-00003-1477196 7
Developer shall acquire no rights in such documents; provided, however, that Developer, at its
option. may retain copies of any such documents and materials.
8.16. Time. Time is of the essence of this Agreement.
8.17. Interpretation of A>reement. The parties hereto hereby acknowledge and
agree that (i) each party hereto is of equal bargaining strength, (ii) each such party has actively
participated in the drafting, preparation, and negotiation of this Agreement, (iii) each such party
has consulted with such parry's own independent counsel, and such other professional advisors
as such party has deemed appropriate, relative to any and all matters contemplated under this
Agreement, (iv) each such party and such party's counsel and advisors have reviewed this
Agreement, (v) each such party has agreed to enter into this Agreement following such review
and rendering of such advise, and (vi) any rule of construction to the effect that ambiguities are
to be resolved against the drafting party shall not apply in the interpretation of this Agreement,
any portion thereof, or any amendment hereto.
8.18. Taxes and Contributions. Developer assumes full and exclusive
responsibility and liability for withholding and paying, as may be required by law, all federal.
state, and local taxes and contributions, with respect to, assessed against, or measured by
Developer's earnings under this Agreement or by salaries or other contributions or benefits paid
or made available to any persons retained, employed, or used by Developer, and for other taxes
and contributions for which Developer may be responsible under any laws or regulations or
under this Agreement. Developer shall timely file all returns and/or reports required in
connection with any and all laws, regulations, taxes, contributions, and benefits described in this
Section.
8.19. No Third Party Beneficiary. Any agreement to pay any amount and any
assumption of liability herein contained, expressed or implied, shall be only for the benefit of the
parties hereto and their respective successors and assigns, and such agreements and assumptions
shall not inure to the benefit of the obligees of any indebtedness or any other party, whomsoever,
otherwise deemed to be a third -party beneficiary of this Agreement.
8.20. Licenses. Developer shall, at Developer's own expense, qualify to do
business and obtain and maintain such licenses as may be required for Developer's performance
of Developer's obligations and duties under this Agreement.
8.21. Remedies Cumulative. Each right, power, and remedy provided for herein
or now or hereafter existing at law, in equity, by statute, or otherwise shall be cumulative and
shall be in addition to every other right, power, or remedy provided for herein or now or
hereafter existing at law, in equity, by statute, or otherwise, and the exercise, the commencement
of the exercise, or the forbearance of the exercise by any party of anyone or more of such rights,
powers, or remedies shall not preclude the simultaneous or later exercise by such party of any or
all of such other rights, powers or remedies.
8.22. Limitation of Liability. Except to the extent of such parties' interest in
Developer or Owner (as the case may be). and except in connection with any fraudulent act or
omission on the part of the subject individual, no present or future partner, member, manager,
27
12281-00003-1477196 7
director, officer, shareholder, employee or advisor of or in any party to this Agreement shall have
any personal liability, directly or indirectly, under or in connection with this Agreement. or any
amendment or amendments to this Agreement made at any time or times, heretofore or hereafter,
and, except as otherwise set forth above, each party and its successors and assigns and, without
limitation, all other persons and entities, shall look solely to the assets of the other party for the
payment of any claim or for any performance and each party hereby waives any and all such
personal liability. The limitations of liability contained in this Section 8.22 shall survive the
termination of this Agreement, and are in addition to, and not in limitation of, any limitation on
liability applicable to any party provided by law.
8.23. Incorporation of Exhibits. The following exhibits are expressly
incorporated into this Agreement by this reference:
EXHIBIT A Real Property Description
EXHIBIT B Business Plan
EXHIBIT C Consultants and General Contractor
EXHIBIT D Payment Procedures
EXHIBIT E Certificate of Insurance
EXHIBIT F Proposed Form of Construction Contract
Executed the day and year first above written.
OWNER: PALM DESERT REDEVELOPMENT
AGENCY, a public body, corporate and politic
By:
Name:
Title:
28
12281-00003-1.177196 7
ATTEST:
Secretary
DEVELOPER: COMDYN PD, LLC,
a California limited liability company
By: ComDvn, LLC,
Managing Member
29
12281-00003.1477196 7
By:
Name:
Title:
EXHIBIT A
Real Property Description
A-1
12281-00003-1477196 7
EXHIBIT B
Business Plan
I0-M
12281-00003-1477196 7
Exhibit B.1
List of Contract Documents
A. Tract map:
1. Tentative Tract Map No. 30795, sheets 1-8, dated for revisions
2. Final Tract Map No. 30795, sheets = —, dated for recordation _ (to be
added)
B. Schematic architectural documents prepared by Kristi Hanson Architects, Inc.:
1. "Site Plans and Elevations - Single -Family Units" (7 pages) incorporated
as Appendix 2 in the Agency RFP issued February 2005
2. "Site Plans and Elevations - Senior Units" (4 pages) incorporated as
Appendix 3 in the Agency RFP issued February 2005
C. Construction documents:
1. Civil engineering documents prepared by MSA Consulting, Inc.:
i. Rough Grading Plans, sheets 1-4 dated for revisions (date)
ii. Street/Storm Drain Improvement Plans, sheets 1-9 dated for
revisions (date)
iii. Sewer Improvement Plans, sheets 1-6 dated for revisions (date)
iv. Water Improvement Plans, sheets 1-4 dated for revisions (date)
v. SWPP, dated
vi. PM-10 Plan, dated
2. Civil engineering documents prepared by
i. Block wall, dated
3. Dry utility plans:
i. Electric, prepared by Southern California Edison, dated
ii. Gas, prepared by The Gas Company, dated
iii. Telephone, prepared by Verizon, dated
iv. Cable T.V., prepared by Time Warner, dated
4. Construction documents for Rental Housing prepared by Kristi Hanson
Architects, Inc., et al (to be added)
5. Construction documents for For -Sale Housing prepared by KTGY Group,
Inc., et al (to be added)
6. Landscape architecture documents prepared by RGA Landscape
Architects, Inc. (to be added)
Exhibit B2
Project Budget
AFFORDABLE HOUSING RFP: SFH & SENIOR APTS COMBINED
PALM DESERT. CA
EXHIBIT B.2 - PROJECT BUDGET
June 30. 2005
IINITS 1'_1
ACRES 21
CONTINGENCY Vanable
BUDGET SUMMARY
ORIG. BCDGFT
TOTAL BCDGET
CODE DESCRIPTION
4.19.2005
INF7tASTRIICTURE
5.23.05
1000 LAND
0
0
0
1500 BONDS AND FEES
1,650,098
88,372
1,738.470
2000 SITE IMPROVEMENTS
1.000
3.780,000
3,781,000
2300 COMMON AREAS
1,128,135
92,966
1,221,101
2500 ENGINELRING
58,800
228,100
286.900
3000 ONSI rE ( DIRECTS)
10.076.760
0
10,076,760
3900 LOT IMPROVEMENTS
1.358.862
0
1,358,862
4000 GENERAL REQUIREMENTS
1.204,567
250,904
1,455,471
5000 PROJECT DEVELOPMENT
312.000
0
312.000
5900 DEVELOPER & CONTRACTOR'S I
2.208.730
211.846
2,420.576
5900 GENERAL ADMINISTRATION
760.538
191,191
951,729
5900 PROPERTY TAXES
0
0
0
6000 FINANCL
0
0
0
7000 SALES COMPLEX & COMM RM
317,355
0
317,355
8000 SALES AND MARKETING
524.266
0
524.266
CONTINGENCY
804.946
425,409
1.230.356
TOTAL
20.406.057
5,268,788
25.674,845
APPROVED BY:
Steve Roberts, Development Project Manager
Dempwy Yearout, VICC President of Construction
Chnstine Dillon. Controller
INITIAL BUDGET APPROVAL.
( URRENT REVISION TIME: I 2:01 PM
PROJECT NUAiBER: I
UNIT
TOTAL
PLAN
PUNITS
010 MIX
SQ FT.
SQ FT.
A - SFII
27
22.340
1,556
42.612
B - SFH
26
21 5%
1,495
38.870
C - SFH
20
16.5%
1.637
32.740
D - SFH
21
17.4%
1,637
34.377
1 - Sr
12
9.90'0
718
8,616
2 - Sr
12
9.9010
615
7.380
3-Sr
I
0.p°
615
615
4 - Sr
1
0.8%
615
615
5 - Sr
1
0.800
718
718
(omm Rm
1
0 800
1.103
1.103
TOTAL
121
100.800
1.381
167.046
NET ACRES
21
NET DENSITY 5 8
AFFORDABLE HOUSING RFP: SFH R. SENIOR APTS COMBINED
PALM DESERT, CA
MASTER BUDGET BREAKDOWN
LAND
June 30. 2005
BUDGET SUMMARY
ICODE
DESCRIPTION
10-0001
OPTION PAYMENTS
10-10003
PURCHASE PRICE
10-0005
EXTENSION FEES
10-0007
BROKER'S COMSSION
10-0009
CLOSING COSTS
10-0010
CONTINGENCY
UNITS
ACRES
CONTINGENCY
PER UNIT
PER ACRE
0
0
0
0
0
0
0
0
0
0
0
0
0
0
TOTAL
AFFORDABLE HOUSING RFP: SFH & SENIOR APTS COMBINED
PALM DESERT, CA
MASTER BUDGET BREAKDOWN
June 30.2005
BUDGET DETAIL
CODE
DESCRIPTION
10-0001
OPTION PAYMENTS
Option payments
10-0003
PURCHASE PRICE
Initial Deposit
Addtiomal Deposits
Balance of purchase price
10-0005
EXTENSION FEES
Due diligence
Closing
10-0007
BROKER'S COMSSION
Commission
Adjumments
10-0009
CLOSING COSTS
Title insurance
Escrow fees
10-0010
CONTINGENCY
General
TOTAL BUDGET
121
21
5.0%
TOTAL
BUDGET
0
0
0
0
0
0
0
QTY.
UNIT
PRICE
EXTENSION
BUDGET
0
0
LS
0
0
0
0
LS
0
0
0
LS
0
0
I
LS
0
0
0
0
LS
0
0
0
LS
0
0
0
0
LS
0
0
0
LS
0
0
0
1
LS
0
0
1
LS
0
0
0
1
LS
0
0
0 0
AFFORDABLE HOUSING RFP: SFH & SENIOR APTS COMBINED
PALM DESERT, CA
MASTER BUDGET BREAKDOWN
BONDS AND FEES
June 30. 2005
BUDGET SLMMARI'
CODE
DESCRIPTION
15-1501
FEES - SYSTENIS/FACILITIES
15-1502
FEES - ENT11 LEMENT PROCLSSING
I5-1503
FEES - ROAD'TRAFFIC
15-1504
FEES - SCHOOL
15-1505
FEES - PARK
15-1506
FEES - SEWER CONNE•CI ION
15-1507
FLES - SANI FATION
15-1508
FEES - ENVIRONMENTAL
I5-1509
FEES - TRACT MAP
15-1512
FEES - STORM DRAIN
15-1513
FEES - WATER
15-1515
PERMITS - DEMOLITION
15-1527
PLAN CHECK /PERMIT S- FIRE
15-1530
PLAN CIIECK:PERMIT-GRADFNG
15-1535
PLAN CHECKANSPECTION - LANDSCAPING
15-1536
PLAN CHECK/INSPECTION - STREETS
15-1537
PLAN CHECK/INSPECTION - WALL
I5-1538
PLAN CHEC'KlPFRMIT - OTHER
15-1540
PLAN CIIECK•'PLRMITS - BUILDING
15-1550
IMPROVEMENT BONDS
IS-1560
DEPOSITS.FF.ES- ELECTRICAL
15-1561
DEPOSITS:FEES - GAS
15-1564
DEPOSITS/FEES - UTILITIES/OTHER
15-1562
DEPOSITS:FEES-TELEPHONF
15-I597
PRE..LIMINARY ESTIMATE
15-1598
CONTINGENCY
TOTAL
AFFORDABLE IIOUSING RIV SFH & SENIOR APTS COA1BfN-ED
PALM DESERT, CA
MASTER BUDGFT BREAKDOWN
BONDS AND FEES
June 30. 2005
BUDGET DETAIL
Original
CODE DESCRIPTION I Budget
I5-1501 FEES - SYSTENISIFACILITIES
15-1502 FEES - ENTITLENIENT PROCESSING
Prcliminary estimate
15-1503 FEES - ROAD:TRAFFIC
Stgnalizauon (paid by others at time of sac grading pmt)
1 ransportation Unifom Mitigation Fee ( 47 du low income exempt)
15-1504 FEES - SCHOOL
Desert Sands Unified School District
15.1505 FEES - PARK
Ordinance No 128 (%slue based tax rolls show $1 assessed saluc)
15-1506 FFES - SEWER CONNECTION
15-1507 FEI S - SANITATION
CVWD: Sanitation Capacity Charge
I5-1508 FEES -ENVIRONMENTAL
Fnnge Toed Lvard Impact Fee
I5-1509 FEES - TRAC F 11AP
15-1512 FEES - STORM DRAIN
Drainage Impact Fee
SWPP
NPDES Permit
15- 15 13 FEES - WATER
CVWD. Water system backup facility
CVWD: Supplemental Imponed Water Supply Charge
CVWD Meterchdrge
I5-1515 PERMITS - DEMOLITION
I5-1527 PLAN CHECK /PERMITS- FIRE
0
0
LTNITS
121
ACRLS
21
CONTINGENCY
15°b
Original
TOTAL
Budget Infrastruct.
BUDGET
0
0
0
0
0
0
37.333
6.050
43,383
338,375
0
338.375
0
0
0
0
0
0
361.911
0
361,911
0
12.600
12.600
0
0
0
2.000
30.036
32.036
575.460
-52,383
523.077
0
0
0
2.069
0
2.069
0
15.442
15.442
0
0
0
u
14.240
14.240
500
0
500
0
0
0
332.450
0
332,450
0
62,387
62.387
0
0
0
0
0
u
0
0
0
0
0
0
0
0
0
24,751
1.326
26.077
1,674,849
89,698
1.764,547
TOTAL
Infrastruct. Subtotal BUDGET
000
000 6,050.00
37.332 57 0.00
338.374.68 0.00
361.911.00 0.00
0.00 12,600.00
0.00 31,500.00
0.00 536.00
2.000.00-2,000.00
318.230.00 000
226.479.94-52,382 52
30.750.00 000
0.00
43,383
6050.00
37332.57
338,375
338374 68
361.911
361911 00
12,600
12600.00
0.00
0.00
32,036
3150000
53600
000
523,077
318230.00
174097.42
30750.00
0.00
2.069
AFFORDABI E HOUSING RFP SFH & SENIOR APTS COMBINED
PALM DESERT. CA
NIj%STER BUDGET BREAKDOWN
BONDS AND FEES
June 30.2005
BUDGET DETAIL
Original
CODE _ DESCRIPTION
---- Budget
Infrastruct
Plan Check
31444
000
Permit Fecs
1.754.59
0.00
15-1531) PLAN CHECK/PERMIT-GRADING
Application processing
000
39R 00
Grading Inspeuion
000
)4.508 00
PNI-M Plan
0.00
268 00
SWPP
0.00
268.00
)5-1535 PLAN CHE(WINSPECTION - LANDSCAPING
I5-1536 PLAN CHECK,'INSPEC HON - STREETS
Permit Fees: Full street
Permit Fees Hall Street
Permit Fecs' Signing & striping
15-1537 PLAN CHECKIINSPECTION - WALL
Perimeter Wall
Inspection Fees
15-1538 PLAN CHECK,PERNIIT - OTHER
Electrical Permit
Mechanical Permit
Plumbing Permit
15-1540 PLAN CHECKrPERMITS - BUILDING
Pldn Check (Resolution No 04-84)
Construction Tax (Ordinance no. 216)
SMIP Fees
Microfilm fees
Permit Fees
Art In Public Place,
1 UMF (See cost code 15-1503)
Architectural Resie k
Job Valuation
15-1550 Lti1PROVFMF.NTBONDS
Completion/Performa nee Bonds (Street lmpro�ements)
Monumentation
15-1560 DEPOSI'FSiTEFS - ELECTRICAL
General
Deposits/Fees
Street Lights
Ad%ance Energy Deposit
Refunds
15.1561 DEPOSITS/FEES - GAS
Distribution Fee
Meter install
Air test
Refunds
Other
Deposits: Fecs
Other
I5.1564 DEPOSITS.'FEES-UTILITII-S.OTHFR
General
Refunds
15-1562 DEPOSITS•FFES-TELEPHONE
General
15-1597 PRELIMINARY ESTIMATE
General
15-1598 CONTINGENCY
General
TOTAL. BUDGET
0.00 10416.00
00) 3,452.16
000 372.00
500 00 0130
32,400.95 000
60.813.60 0.00
1.335.12 0.00
6.681.00 0.00
188.250.42 000
33,555 29 0 00
0.00 000
000 000
3.413.96 000
000 62.386.50
24.751 46 1.325 58
1.67.4.849 99,698
TOTAL
Subtotal BUDGET
31444
1754.59
15.442
398.00
)4508.00
268.00
26R.00
0.00
10416.00
3452.16
372.00
0.00
50000
0 00
0 00
0.00
000
3240095
6681360
1335 12
6681 00
IS9250A2
33555.29
000
0 00
3413 96
62386.50
0 00
000
000
000
000
000
0.00
000
000
00)
0.00
0 00
0.(10
000
000
n 00
0.00
26077.05
1.764.547
14.240
500
332.450
62.387
26.07.7
1.764.547
AFFORDABLE HOUSING RFP: SFH & SENIOR APTS COMBINED
PALM DESERT, CA
MASTER BUDGET BREAKDOWN
SITE IMPROVEMENTS
June 30,2005
121
JUNIFS
ACRES
21
CONTINGENCY
9 9%
BUDGET SUNItNtARV
Original
TOTAL
CODE
DESCRIPTION
Budget
Infrastruct.
BUDGET
20-2001
DFPIOLITION/REMEDIALS
1.000
0
1.000
20-2012
ROUGH GRADING
0
0
0
20-2013
RETAINING WALLS
0
0
0
20-2020
PI:RIM1il ER FF.NCINGWALLS
0
0
0
20-2031
SANITARY SEWER
0
0
0
20-2032
STORM DRAIN
0
0
0
20.2040
WATER SYSTEMS
0
0
0
20.2041
WATER METERS
0
0
0
20.2050
UTILITY TRENCHING
0
0
0
20-212I
PAVING
0
0
0
20.2122
CURB R GUTTER
0
0
0
20-2123
SIDE WALK K APPROACHES
0
0
0
20-2154
STREET LIGHTING
0
0
0
20-2175
CIVIL ENGINFERING - FIELD
0
0
0
20.2176
SOILS F.NGr\EERTN'G - FIELD
0
0
0
20-2177
DEPUTY INSPECTIONS
p
0
0
20-2214
EROSION CONTROL
0
0
0
20-2217
WEED ABATEMENT
0
0
0
20-2224
SIGNS,I3ARRICADES:STRIPING
0
0
0
20-2227
'TRAFFIC CON TROUMISCELLANEOUS
0
0
0
20-7229
REPAIR AND REMOVAL
0
0
0
20-2296
PRELIMINARY ESTIMATE
0
3,780,000
3,780,00t1
20-2297
PREVAILING WAGE PREMIUM
0
0
0
20-2298
CONTINGENCY
99
374,319
374.419
TOTAL
I'll"
4,154.319
4,155,418
AFFORDABLE. HOUSING RFP: SFH R SENIOR .4PTS COMBINED
PALM DESERT. CA
MASTER BUDGET BREAKDOWN
SITE IMPROVEMENTS
June 30. 2005
BURG :T DETAIL
Original
TOTAL
CODE,
_. DESCRIPTION
Budget Infrastruct.
Subtotal
BUDGET
20-2001
DEMOLITIONiREMEDIALS
1,000
General
1.00000 0.00
1.000.00
20.2012
ROUGH GRADING
Mobilvation
Site Preparation (clear and grub)
O%er Etcavanon I5' depth)fill arca�
Tnm and Finish Common Areas
Water
Fim�h Pads
Assumed Earthwork Qudnunes
Import Din
Fine Grade Streets
20-2013
RETAINING WALLS
General
Block
Precision Block
Split face Block
Slump Stone Block - 4' Height
Stucco Finish
Back drain
Slough Wall
Dirt Removal
`Esc. In -Tract Retaining Walls
PiIasters Caps
20-2020
PERIMETER FENCINGWALLS
Perimeter Walls
Decorative Pilasters
Penmver Fencing
2D-2031
SANITARY SEWER
AC Remo\al/Replacement
Main Line
Join Esi,ung
3" ScHer Wain
Sid 48" Manhole
o
O
G
N �
�
G �
W
•�
O
O-o�prrrn:?
'!• "� � ..j Tf i �! r� '9 A y iQ � ry O j j � �
f
C"?
!
-�. � p '
y) y ..: r, :n ^n ^n 7�x �_ �, =.rt ia� A f .^, .�.• �"a �-sA
:sry �.
F nOrt �� y �, �. cn
VJ ?f i 7ry `t .� J+ 7 'Z
O .�,,, • a y x w 7 v_ e; � a � ro � y .r. J n n .� � � .:J tr= n �
�,.r r" w
� G ? r S �' } '
r n n S °i 7 m V
r•% }. m y r%
n a � � � � r "
p �,� d ? N v� V1 ri n w c rt n u .�' y :. — f.
R•na,. °a � � � o o. � b N � � 7 n a � R v' � � F
/ �
G' N c
�
^�� � W
� y
n� ;,7 �<„��• off„;,- wH � � y �
�'°
R n
w a p
� : o� ar F a•
w n
n
It
IN
n a �
p
O
n
r m
y
�
AFFORDABLE HOL(SING RFP SFH & SENIOR APTS COMBINED
PALM DESERT, CA
!MASTER BUDGET BRFAKDOW'N
SITE IMPROVEMENTS
June 30.2005
BLrDG :T DETAIL
Original
CODE DESCRfPTCON _ ... Budget Infrastruct. Subtotal
Din Removal
Base Mo%e in
Fog Seal
Slurry Seal
Prime Coat
Striping
Street Balance
Add'I Mo%e-in
20-2122
CURB 8r GUTTER
Concrete Cross Gutters
8" Rolled Curb b. Gutter
Curb/Gutter 6"
Curb Only (6" CF )
R & R Fxisiinc - Joins-Transmons
20.2123
SIDE W'AI K & APPROACHI S
R & R Existing - Join,a ransnions
R&R Existing
Fine Grade & Prep
Din Haul
Sidewalk Sub grade
Concrete Approach
PCC Drive Approach w: Basc
4" PC'C Sidewalk
Handicap Ramps
20-2154
STREET LIGHTING
Street Lights
Street Lights (1rfTcrson)
Conduit
Connect to Evsting
Other
20.217^
CIVIL ENGINEERJNG - FIELD
Survey/Field Control
20-2176
SOILS ENGINFERING - FIELD
Tc,ti ng: Compact ton
Field Testing
Rough Grading Obsenation
(nfrastruct.. PiCC1Sr Grading Obs
20.2177
DL.PUTY INSPECTION'S
Field Obsen ation Report
20-2214
EROSIONCONTROL
Temporary Desalting Basin
Seasonal Erosion Control
20-2217
W'EF-D ABATEMENT
General
%k ced Abatement
Other
20-2224
SIGNS:BARRICADES-'STRIPING
General - Bumper/Striping
Miscellaneous (Sign. St. Name, Etc.)
Street Name Signs
Traffic Signs
Blue Dot Marken
Barricades/Temp Signage
20-2227
TRAFFIC CONTROUNIISCELLANEOUS
General
Traffic Signs
Miscellaneous
20-2229
REPAIR AND REMOVAL
General
20-2296
PRELIMINARY ESTIMATE
General
20-2297
PREVAILING WAGE PREMIUM
General
20-2298
CONTINGENCY
General
TOTAL BUDGET
0 00 3.780.000.00 3.780,000 00
99.03 374,319 20 374.418 23
1,099 4.154,319 4,155,418
TOTAL
BUDGET
3,780,000
374.418
4.155,418
AFFORDABLE HOUSING RFP: SFH & SENIOR APTS COMBINED
PALM DESERT. CA
MASTER BUDGET BREAKDOWN
COMMON AREAS
June 30, 2005
BUDGET SUMMARY
CODE DESCRIPTION
23.2301 ENTRY MONUMENTS
23-2305 MAILBOXES:STRUCTLIRES
23-2312 FLATWORK - Common
23-2320 PAVING
23-2326 ELECTRICAL.
23-2327 LIGHTING FIXTURES
23-2340 FINISI4 GRADING/SOIL PREPARATION
23-2341 PLANTING
23-2347 RECREATION EQUIPIAEN1
23-2371 PERIMETER FF:NCING,WALLS
23-2296 PELIMFNARYESTIMATE
23.2297 PREVAILING WAGE PRF.?s91UX1
23-2298 CONTINGENCY
TOTAL
UNITS
121
ACRES
21
C'ON1'INGENCY
5.0°0
Original
TOTAL
Budget
Infrastruct.
BUDGET
0
0
0
5,0o0
0
5.000
49.375
0
49.375
40,800
0
40,800
20.000
0
20,000
20.000
0
2D,000
5.000
0
3.000
u
0
0
0
0
0
73,500
16.300
89,800
914.460
76,666
991.126
0
o
u
56,407
4,648
61.055
1.184,542
97,614
1,282,156
AFFORDABLE HOUSING RFP SFH & SENIOR APTS CON1BINED
PALM DESERT, CA
MASTER BUDGET BREAKDOWN
COMMON AREAS
June 30.2005
CODE
DESCRFPTiOr-
23.2301
ENTRY MONUMENTS
23-2305
MAILBOXESSTRUCTURES
23-2312
FLATWORK - Common
Paseo and Rec Area
23-2320
PAVING
Parking Areas & Western Vehicle Lane
23-2326
ELECTRJCAL.
General (Meter Pedestal)
Condutt:Trench
23-2327
LIGHTING FIXTURES
Recreation Area
Paseos
23-2340
FINISH GRADING/SOIL PREPARATION
C ommon Area & Slopes
23-2341
PLANTING
Street Tree:, 24" Box
Street Trees, 36" Box
Median Trees
Shrubs & Gmundco,�cr
rurf,hrdroseeded
23.2347
RECREATION EQUIRMENT
Tot Lot Equipment
Tot Lot- Curbing, Matting. Sand and Drain
Picnic Tables
BBQ's
Trash Receptacle
23-2371
PERIMETER FENCINGIWALLS
Perimeter mall, general
Decorative Pilasters
CUmmtlmt, Park Basin/Tubular Fence
Entry Basin (Tubular Fence)
End Walls
23-2296
PELIMINARY ESTIMATE
General Landscaping 6, irngarion
23-2297
PREVAILING WAGE. PREMIUM
General
23-2298
CONTINGENCY
General
TOTAL BUDGET
B'_ TDGET DETAIL
Original BUDGET
Budget Infrastruct. Subtotal TOTAL
0
0.00
0 on
0.00
5,000
5.000.00
000
5.000.00
49.375
49,375 00
000
49.374.00
40.800
40,800.00
000
40.800.00
0.00
000
20.000
000
20.00 00
0.00
20.000.00
20.000
0.00
20,000 00
000
20,000 00
5.000
5,000 00
n.n0
50)0 00
0
0.00
0.n0
0.00
000
0.00
0
0.00
0
0.00
0.00
0.00
0.00
99.800
73.500.00
16.300.00
89,800 00
0.00
0
0.00
0
0.00
n
0.00
D
991.126
914.460 00
70,666.00
99) ,126 00
0
000
0
61.035
56.406 75
4.648.30
61,055 05
1,184,542
97,614
1.282,156
1.282,156
AFFORDABLE HOUSING RFP: SFH & SENIOR APTS COMBINED
PALM DESERT, CA
MASTER BUDGET BREAKDOWN
ENGINEERING
June 30, 2005
BLDGET SUMMARY
CODE
, y . DESCRIPTION
25.2303
Ci\IL ENGINEERING - OFFICE
25.2505
CIVIL ENGINEERING . FIELD
25-2507
SOILS ENGINEERING - OFFICE
25-2509
SOILS ENGINEERING - FIELD
25-2511
ENVIRONMENTAL ENGINEERING
25-2513
Ul ILITY ENGINEERING
25-2515
TRAFFIC ENGINEERING
25-2517
CONTINGENCY
UNITS
121
ACRES
21
CONTINGENCY
8 3%
Original
TOTAL.
Budget
Infrastruct.
BUDGET
0
0
29.400
120.600
150,000
10,000
15,000
25.000
19,400
50,000
69.400
0
7,500
7.500
0
35.000
35,000
u
n
0
4.890
18.932
23.813
TOTAL
AFFORDABLE HOUSING RFP SFII & SENIOR API S COMBINED
PAL M DESFRT, CA
MASTER BUDGET BREAKDOWN
June 30.2005
CODE
. .. DESCRIPTION
25-2503
CIVIL ENGINEERING - OFFICIi
Preliminary Design
Construction Documents
Rcimbursables
25.2505
CIVIL ENGINEERING - FIFLD
ALTA Sunev
Field Control
25.2507
SOILS FNGINF-ERING - OFFICE
Geotechnical site m%estigation
25-2509
SOILS ENGINEERING - FIELD
Footings inspections
Infrastructure
Rough Grading
Footings & Trenches
25-2511
ENVIRONMENTAL ENGINEERING
Phase 1
Phase 2
Phase 3
25-2513
UTILITY ENGINEERING
Consulting: cuordmanng
25-2515
TRAFFIC ENGINEERING
Study
Reports
25-25t7
CONTINGENCY
General
TOTAL BUDGET
63,6801 247.032 310,713
BUDGET DETAIL
Original BLDGET
Budget Infrastruct. Subtotal TOTAL
150.000
29,400,00
120,600.00
150.000 00
25,000
10.000.00
15.000.00
25,000 00
69.400
9.40000
0.00
9,400.00
0,00
30,000.00
30,000.00
000
20,000 00
20,000.00
10,000.00
000
10.000 00
7,500
Q.w
7,500 00
7,500.00
0.00
000
35.000
000
35,000.00
35,000.00
0
000
000
23,913
4,88040
18.932 30
23,812.70
63.680
247.032
310.713
310.713
w w w w w w w w w .-, w w w w w w w w w w w w w w w w w n O O O O O O C^ O O O O O O O O G O G O O O O C O O O O J O G O O O O O O O O O O O O O O C G O 0 0 O O O O O O O C O O O p
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—I
AFFORDABLE HOUSING RJ-P SFH & SENIOR APTS COMBINED
PALM DESERT, CA
MASTER BUDGET BREAKDOWN
ONSITES
June 30,2005
BUDGET DETA L
Original
CODE DESCRIPTION Budget Infrastruct. Subtotal
30-3014 CONCRETE FOUNDATIONS
General
30-3079
bI RUCTURAI STEEL
General
30-3082
TERMITE TREATMENT
General
30-3092
WATERPROOFING
General
30-3104
CABLE IVPREWIRE
General
30.3W7
CARPENTRY ROUGH
General
30-3117
SEWER CONNECTIONS
General
30-3125
ELECTRICAL W[RfNG
General
30-3129
FIREPLACES
General
30-3130
FIRE SPRINKLERS
General
30-3143
HVAC
General
30-3144
INSULATION
General
30.3149
LIGHTWEIGHT CONCRETE
General
30-3162
PLUMBING
Gcncra I
30-3165
ROOFING
General
30-3168
SASH he SCREEN
General
30-3171
SECURITY PREWIRE
General
30-3172
SMELT METAL
General
30-3181
TELEPHONE PREWIRI:
General
30-3205
CARPENTRY FINISH
General
30.3206
CARPENTRY FINISH - STAIRS
General
30-3208
CARPENTRY FINISH - SIIELVfNG
General
30-3210
CLEAN-UP ROUGH
General
30-3272
DRYWALL
General
30-3252
MASONRY VENEER
General
30-3259
PRECAST STONE
General
30.3290
STUCCO
General
30.3301
APPLIANCES
General
30-3303
CABINETS
General
30-3309
CERAMIC TILE.
General
30-3313
C-ONCRF.TE FLATWORK
General
30-3319
DECKING
General
30.3324
ELECTRICAL FIXTURES
General
30-3327
SHOWER ENCLOSURES
General
30.3336
CARPORTS
General
30-3337
GARAGE OPENERS
General
30-3341
FINISH HARDWARE
54,000.00 000 54.000 00
BL-DGET
TOTAL
0
0
0
0
0
0
0
0
U
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
54.000
0
AFFORDABLE HOUSING RFP SFH & SENIOR AI'TS COMBfNED
PALM DESERT. CA
MASTER BUDGET BREAKDO"-N
ONSITES
June 30. 2005
BUDGET DETAIL
Original
BUDGET
CODE
DESCRIPTION
Budget Infractruct.
Subtotal TOTAL.
General
0
30.3346
ORNAMENTAL IRONWORKS
General
0
30-3350
LUMINOUS CEILINGS
General
0
30-3351
FIRFPLACE FACTS
General
0
30-3353
MIRRORS
General
0
30-3355
NTUSIC SYSI EM PRE WIRE
General
0
30.3357
NIIRROR DOORS
General
0
30-3360
PAINTING
General
0
30-3366
GUI TER be DOWNSPOUTS
General
0
30-3382
COUNTF R TOPS - STONE.
General
0
30.3383
COUNTER TOPS - MARBLE
General
0
30-3384
COUNTER TOPS -FORMICA
General
0
30.3385
COUNTER TOPS - CORIAN
General
0
30.3388
FIBERGLASS TUBS SHOWERS
General
0
30-3391
WARDROBE DOORS - VINYL
General
0
30-3394
WEATHERSI RIP
General
0
30-3411
CLEAN-UP FfNAI.
General
0
30-3431
FLOORING -CARPET
General
0
30-3432
FI OORfNG - CERAMIC
General
0
30-3433
FLOORING - RESILIENT
General
0
30-3435
FLOORING - WOOD
General
0
30-3459
WINDOW COVERING
General
0
30-3496
PRELIMINARY ESTIMATE
10.022,760
General
0.00
10,022,760.00
30-3497
PREVAILING WAGE PREMIUM
General
0
30-3498
CONTINGENCY
503.838
General
503,838.00 0.00
503,838 00
TOTAL. BUDGET
10,580,598 0
10,580.598 10.580.598
AFFORDABLE HOUSING RFP: SFH & SENIOR APTS COMBINED
PALM DESERT, CA
MASTER BUDGET BREAKDOWN
LOT IMPROVEMENTS
June 30, 2005
UNITS
ACRES
CONTINGENCY
BUDGET SUMMARY
Original
CODE _.
DESCRIPTIONtagggim
Budget
Infrastruct.
39-3930
MAILBOXES
0
0
39-3940
FINISH GRADING
56A00
0
39-3941
YARD & PARKWAY LANDSCAPING
470,000
0
39-3971
YARD FENCING
673,050
0
39-3990
FLATWORK
159,412
0
39-3996
PRELIMINARY ESTIMATE
0
0
39-3997
PREVAILING WAGE PREMIUM
0
0
39-3998
CONTINGENCY
40,766
0
TOTAL
1,399,628
0
AFFORDABLE HOUSING RFP: SFH & SENIOR APTS COMBINED
PALM DESERT, CA
MASTER BUDGET BREAKDOWN
LOT IMPROVEMENTS
June 30. 2005
BUDGET DETAIL
Original
BUDGET
CODE
DESCRIPTIONI
�. ,, Budget Infrastruct.
Subtotal
TOTAL
39-3930
MAILBOXES
Mailboxes
0.00
0.00
0.00
39-3940
FINISH GRADING
56,400
Lot Pulls (Rough)
28.200.00
0.00
28.200.00
Fine Grade (Finish)
28,200.00
0.00
28,200.00
39-3941
YARD & PARKWAY LANDSCAPING
470,000
4"PVC Dram line and Catch Basin
0.00
0.00
0.00
Front Yard Trees, 15 Gallon
0.00
0.00
0.00
Shrubs & Groundcover
0.00
0.00
0.00
Turf, Hydroseed
0.00
0.00
0.00
Irrigation
0.00
0.00
0.00
Soil Prep & Fine Grading
0.00
0.00
0.00
Preliminary estimate
470,000.00
0.00
470,000.00
39-3971
YARD FENCING
673.050
Block
658,950.00
0.00
658,950.00
Gates
14,100.00
0.00
14,100.00
39-3990
FLATWORK
159,412
6" Step.u;Stoop
0.00
0.00
0.00
Driveways
94.000.00
0.00
94,000.00
Sidewalks
16,920.00
0.00
16,920.00
Porches
48,492.00
0.00
48,492.00
39-3996
PRELIMINARY ESTIMATE
0
General
0.00
0.00
0.00
39-3997
PREVAILrNG WAGE PREMIUM
0
General
0.00
0.00
0.00
39-3998
CONTINGENCY
40,766
General
40,765.86
0.00
40,765.86
TOTAL BUDGET
1,399,628
0
1,399,628
1,399,628
121
21
3.0%
TOTAL
BUDGET
0
56,400
470,000
673.050
159.412
0
0
40,766
1,399,628
AFFORDABLE HOUSING RFP: SFH & SENIOR APTS COMBINED
PALM DESERT, CA
MASTER BUDGET BREAKDOWN
GENERAL REQUIREMENTS
June 30, 2005
CODE
DESCRIPTION
40.4002
BREAKAGE'VANDALISM,
40-4003
INSURANCF
40.4004
PROJECT MANAGEMENT
40.4020
SUPERVISION
40-4023
CONSTRUCTION LABOR
40-4125
GLI ARD SERVI( E
40-4130
FIELD OFFICE/STORAGE
40-4132
EQUIPMENT
40-4133
TEMPORARY FENCE
40-4134
f EMPORARY POWER
40-4135
TEMPORARY SANITATION
40-4137
TEMPORARY WATER
40-4138
S'fRECTCLEANING
40-4403
WARRANI Y SERVICE RESERVE
40-4996
PRELIMINARY ESTIMATE
40-4997
PREVAILfNG WAGE PREMIUM
40-4999 CON ffNGFNCY
BL )GET SUNtNLARY
TOTAL
UNITS
12I
ACRES
21
CONTINGENCY
8.0°0
Original
TOTAL
Budget Infrastruct.
BLDGET
12,100
0
12,100
212.192
66.599
278.791
1.30,875
-18,125
189,000
320.100
99.000
419.100
93,000
16.480
109,480
120.000
0
120,000
36.500
5.200
41,700
1 1.2 50
1.000
12,250
18,000
0
18.000
37.000
0
37,000
18.250
14,500
32.75n
15,i00
0
15,500
10,000
0
10.0on
159,800
0
159,800
0
0
0
0
0
0
96,681
20,138
116.919
1.301,248
271,042
1,572,290
AFFORDABLE HOUSING RFP: SFII & SENIOR APTS COMBINED
PALM DESERT, CA
MASTER BUDGET BREAKDOWN
GENERAL REQUIREMENTS
June 30, 2005
BUDGET DETAIL
Original
BUDGET
CODE
DESCRIPTION
Budget
Infrastruct.
Subtotal
TOTAL
40-4002
BREAKAGE/VANDALISM
12,100
Breakage'Vandahsm
12.100.00
0 00
12.100 00
Other
000
40-4003
INSURANCE
278.791
Completion Bond
21 2.192.00
66,599 00
278.791 00
40-4004
PROJEC1 MANAGEMENT
189.000
Constr. Project Manager
140,S75.00
48,125.00
189,000.00
40-4020
SUPERVISION
419,100
General Superintendent
0.00
Project Superintendent
105,00&00
66.000.00
171.000.00
Assistant Superintendents
60.000.00
0.00
60,000 00
Ass( Supt. Site impro,ements
0.00
24.00000
24,000 00
Asst Supi. Rough
72.000 00
0 00
72,000 00
Abst Supt: Finish
54,000 00
000
54.000.00
Bonuses & Reimb
29,100.00
9,000.00
38,100 00
40-4023
CONSTRUCTION LABOR
109,480
Mtac. Labor
78,000.00
12 480.00
90.480 00
Temporary Labor
15,000.00
4.00000
19.000 00
40-4125
GUARD SERVICE
120,000
Miscellaneous Sen•ice
120,000.00
000
120.000.00
40-4130
FIELD OFFICE'STORAGE
41.700
Trailer
8,750.00
1.40000
10.150.00
Trailer set-up
4,000 00
0.00
4.000.00
AC Pad/Parking
0.00
Trailer supplies
5.000 00
800.00
5,80000
I elephone
15.000 00
2,400.00
11.400 00
Bin Rental
3.75000
600.00
4.350.00
40.4132
EQUIPMENT
12.250
Equipment Rentals
6.250.00
1.000.00
7,250.00
Equipment Purchase
5.00000
000
5,00000
40.4133
TEMPORARY FENCE
18,000
Chain Link Fencing Set up
2.000.00
2.000.00
Monthly rental
10,000 00
I0.000 00
Gates
0.00
Wind Screen
000
Maintenance.Relocation
4.00000
4,000.nO
Site Signs
2,00000
2.000.00
40-4134
TEMPORARY POWER
37,000
Poker Poles
35.000 00
35.000.00
Po. cr Pole Inaiall
2,000A0
2.00000
Power Service
0.00
AFFORDABLE HOUSING RI'P. SFII & SENIOR APTS COMBINED
PALM DESERT. CA
!.tAS FF.R BUDGET BREAKDOWN
GENERAL REQUIREMENTS
June 30, 2005
CODE DESCRWrION
Generator
All Inclusnr
-10-4I35 TI;AIPORIRY SANITATION
Setup
Monthl} rental
40-4137 Tl MPORSRY WATER
Con.tructron Water
Imgation - Establishment penod
40.4138 STREET C LEANING
Intenor Street Cleaning
40-4403 WARRANTYSERVICE RESERVF
Warrant} Service Resere
Customer Serice
40-4996 PRELIMINARY ESTIMATE
General
40-4997 PREVAILING WAGE PREMIUM
General
40-4998 CONTINGENCY
General
TOTAL BUDGET
BUDGET DETAIL
Original
Budget Infrastruct.
2,000.00 3,000.00
16.? 50.00 11.500.00
12.500 0
3,000.00
10,000 00
50,000 00
109,900.00
BUDGET
Subtotal
TOTAL
000
0.00
32.750
5,00000
27.'750 00
15.500
12.500 no
3,000.00
10,000
10 n00.00
159,800
50,000 00
I09.800 00
0
0
116.819
96,681.28 20,138A 2 116,819 40
1,301,248 271.042 1,572.290 1.572,290
0
AFFORDABLE HOUSING RFP: SFH & SENIOR APTS COMBINED
PALM DESERT, CA
MASTER BUDGET BREAKDOWN
PROJECT DEVELOPMENT
June 30. 2005
BUDGET SUNINIARY
CODE
_ . DESCRIPTION
50-5003
ARCHITECT - SFR
50-5005
LAN DSCAAPF-ARCHITECT
50-5007
GRAPHICS - CONSUI TANT
50-5009
COLOR - CONSULTANT
50-5010
MARKET RFSE.ARCH - CONSULTANT
50-5013
ACOUSTICAL ENGINEERING
50-5015
STRUCTURAL ENGINEERING
50-5018
MECHANICAL/PI-UMBfNG ENGINEERING
50-5019
FLECTRICAL ENGINEERING
50-5020
TITLE 24 ENGINFERING
5U-5109
BLUEPRINTS/DELIVERY
50.5110
AERIAL PHOTOGRAPHY
50.5111
TR.A`vEL EXPENSES
50.5345
BUDGET PRFP
50-5362
LEGAL -PRO] DEV - DDA
50-5365
MISC
50-5997
PRE'I IMIN.ARY ESTIMATE
50-5998
CONTINGENCY
TOTAL
AFFORDABLE HOUSING REP: SFH & SENIOR APTS COMBINED
PALM DESERT. CA
MASTER BUDGET BREAKDOWN
PROJECT DEVELOPMENT
June 30. 2005
CODE
__ DESCRIPTION__
50-5003
ARCHITECT - SFR
Concept - ER.N/MOU
Prelim Design - DDA
Schematic Design
Design Dexe(opment
Construction Documents
RevisionstRed Line Chaney
Reimbursable Allowance
Construction Observation
Additional Plan,/Engineering
50-5005
LANDSCAPE-ARCHITECI
Retainer
Schematic Design & Cost Estimate
Construction Documents & Specifications
Construction Obseri ation
Reimbursable Allowance
50-5007
GRAPHICS - CONSULTAN f
Phasing Plan
Pre-Deielop Studies mist. exhibit,-RFP
Misc. Presentation
Presentation Site Plan
Project Manual
Reimbursable Alloiance
Other
50-5009
COLOR -CONSULTANT
( olor Program
Plotting Studies
50-50)0
NIARKETRESEARCH- CONSULTANT
Pre -Develop Studies
50-5013
ACOUSTICAL ENGINF.ERf\G
Sound Study
Penmeter Wall Design
50-5015
STRUCTURAL F.NGINFERING
Design (Intl In Arch1
Construction Documents
NItscellaneous Common .Area Engineering
Field Obseri ation
Reizsions
Reimbursable Allowance
UNITS
121
ACRES
21
CONTINGENCY
5 0%
Original
TOTAL
Budget Infrastruct.
BUDGET
15.000
0 75.000
79,500
0 79,500
5.00n
0 5.000
14,500
0 14,500
0
0 0
0
0 0
26.000
0 26,000
U
U 0
U
0 0
2.000
0 2.000
60.000
0 60.000
0
0 0
0
0 0
0
0 0
50.000
0 50,000
0
0 0
0
0 0
15,600
0 15.600
327,600
0 327.600
BUDGET DETAIL
Original
BUDGET
Budget Infrastruct.
Subtotal fOTAL
75.000
20.000 00
20.000.00
40.000.00
40.000.00
5.000A0
5.000.00
5,00000
5,000.00
5.000 00
5.00000
43.000.00
43.000 00
21,500 00
21.500 00
10.000.00
10.000.00
MW 00
5,00000
5.00000
5.00000
11,000 00
1 1,000.00
3.50000
3.500.00
16.000.00
16.000 00
5.000 00
5,00000
5.00000
5.000.00
79.500
5.000
14.500
0
0
26.000
AFFORDABLE IIOUSING RFP SFII & SENIOR AP7 S COMBINED
PALM DESERT, CA
MASTER BUDGET BREAKDOWN
PROJECT DEVELOPMENT
Junc 30. 2005
CODE
-_...... DESCRIPTION
50-5018
MECHANICALIPLUMBING ENGINEERING
General
50-5019
ELECTRICAL ENGINEERING
General
50.5020
1'1'rLE 24 ENGINEERING
General
Reports (Incl. in Arch)
50-5109
BLUFPRINTSiDEI.IVERY
De%elopment
Construction
50-5110
AERIAL PHOTOGRAPHY
General
50-5I I1
1RAVEL EXPENSFS
General
50-5345
BUDGET PREP
General
50-5362
LEGAL - PROJ. DF.V. - DDA
Project
Enutlement/DDA
50-5365
MISC.
Bank Charge
Miscellaneous
50-5997
PRELIMINARY ESTIMATE
General
50-5998
CONTINGENCY
General
TOTAL BUDGET
BUDGET DETAIL
Original
BUDGET
Budget Infrastruct.
Subtotal
TOTAL
0
0
2.000
2.00000
2,000.00
60.000
10.0 00
10.000 00
50,000 00
5000.00
0
0
0
50.000
50.000.00
50,000.00
0
0
15.600
15,600 00 15.600 00
327.600 0 327.600 327.600
AFFORDABLE HOUSING RFP: SFH & SENIOR APTS COMBINED
PALM DESERT, CA
MASTER BUDGET BREAKDOWN
GENERAL ADMINISTRATION & FINANCE
June 30, 2005
CODE
DESCRIPTION
59-5901
FEES
59-5903
INSURANCE - GEN LIAB.
59-5905
PROJECT MANAGEMENT
59-5907
ACCOUNTING AU, DITING
59-5909
LEGAL
59-5911
ASSOCIATION DUES
59-5913
PROPERTY TAX
60-6001
A&D LOAN
60-6010
CONSTRUCTION LOAN
60-6020
MORTGAGE FINANCE
60-6030
CONTINGENCY
UNITS
ACRES
CONTINGENCY
BUDGET SUMMARY
Original
___ _ .. _ . - :•:.:,i Budget
2,208.730
591,013
134.525
15,000
20,000
0
0
0
0
0
44,539
TOTAL 3,013,807
AFFORDABLE HOUSING RFP: SFH & SENIOR APTS COMBINED
PALM DESERT, CA
MASTER BUDGET BREAKDOWN
GENERAL ADMINISTRATION & FINANCE
June 30, 2005
CODE
DESCRIPTION,_
59-5901
FEES
Contractor's Ovhd & Profit
Developer's Ovhd & Profit
59-5903
INSURANCE - GEN. LIAB.
Comprehensive: 10 year tail
Course of construction
59-5905
PROJECT MANAGEMENT
Development Project Manager
59-5907
ACCOUNTING!AUDITING
General
59-5909
LEGAL
DRE
59-5911
ASSOCIATION DUES
Capitalization
Monthly Dues
59-5913
PROPERTY TAX
General
60-6001
A&D LOAN
Appraisal Fee
Origination Fee
Legal Fee
Escrow
Title
Interest
60-6010
CONSTRUCTION LOAN
Appraisal Fee
Origination Fee
BUDGET DETAIL
Original
Budget
Infrastruct.
Subtotal
98&730.00
211,846.00
#a########
559,346.00
169.509.00
728,855.00
31,667.00
9,607.00
41,274.00
134.525 00
12,075.00
146,600.00
15,000.00
-
15,000.00
20,000.00
-
20,000.00
Infrastruct.
211,846
179,116
12,075
0
0
0
0
0
0
0
6,046
409,083
BUDGET
TOTAL-...
2,420,576.00
770.129.00
146,600.00
15,000.00
20.000.00
121
21
1.5°b
TOTAL
BUDGET
2,420,576
770,129
146,600
15,000
20,000
0
0
0
0
0
50,585
3,422,890
CODE
60-6020
60-6030
AFFORDABLE HORSING RFP: SFH R SENIOR APTS COMBINED
PALM DESERT, CA
MASTER BUDGET BREAKDOWN
GENERAL ADMINISTRATION & FINANCE
June 30, 2005
DESCRIPTION
Legal Fee
Escrow
Title
Interest
MORTGAGE FINANCE
Origination Fee
Legal Fee
Escrow
Title
Interest
CONTINGENCY
General
TOTAL BUDGET
BUDGET DETAIL
_ Original BUDGET
Budget Infrastruct. Subtotal TOTAL
50,584.58
44,539.02 6,045.56 50.584.58
3,013,807 409,083 3,422,890 3,422,890
AFFORDABLE HOUSING RFP: SFH & SENIOR APTS COMBINED
PALM DESERT, CA
MASTER BUDGET BREAKDOWN
SALES COMPLEX & COMMUNITY ROOM
June 30, 2005
rs
121
�UNt
'1CRES
2I
CONTINGEK(
30"0
BUDGET SUMMARY
Original
TOTAL
CODE
_ DESCRIPTION
„•r,.r'='y
V
Budget
Infrastruct.
BUDGET
70-7000
MODEL COMPLEX CONSTRUCTION
0
0
0
70-7019
HARDSCAPE UPGRADES
0
0
0
70.7020
IRRIGATION SYSTEMS
10,000
0
10.000
70-7021
SURFACE DRAINAGE
0
0
0
70.7024
PLANTING
20,000
0
20,000
70-7111
TRAP FENCING
2,500
0
2.500
70-7185
NIODFL IN FERIOR IJPGRADFS
10.000
0
10,000
70-7186
MODFL CONSTRUCTION 'DESIGN CHANGES
0
0
0
70-7186
MODEL CHANGES
0
0
0
70-7187
MUSIC SYSTEM INSTALLATION (SALES OFFICE)
0
0
0
70-7188
SECURITY SYSTEM NSTALI ATION (SALES OFFICE)
6,000
0
6,000
70-7290
OFFSITF CONVERSION
0
0
0
70-7291
MODEL LANDSCAPE CONVERSION
0
0
0
70-7292
MODEL INTERIOR CONVERSION
0
0
0
70-7293
SAL[ S OFFICE CONVERSION
20.000
0
20,000
73.7306
DECORATING
228.355
0
228.355
73-7311
PRE SALES OFFICE' TRAILER
14,000
0
14.000
73-7320
DESIGN CENTER
0
0
0
?3.7340
PLANT INSTALLATION - INTERIOR
6.500
0
6.500
73-7341
EXTERIOR POT INSTALLATION
0
0
0
73.7351
ONSITE SIGN INSTALLATION
0
0
0
73-7361
CONTINGENCY
9,521
0
9,521
TOTAL
326.876
0
326,976
AFFORDABLE HOUSING RFP. SFH & SENIOR APTS COMBINED
PALM DESFRT.CA
MASTER BUDGET BREAKDO%kN
SALES COMPLEX & CONTMUNITY
ROOM
June 30. 2005
BLrDGET DETAIL
Original
BL-DGET
CODE
DESCRTPTlON Budget
Infrastruct.
Subtotal
TOTAL
70-7000
MODEL COMPI EX CONSTRUCTION
General
0
70-7019
HARDSCAPE UPGRADES
Rear Patio
0
Miscellaneous
0
-
70-7020
IRRIGATION SYSTEMS
10,000
Yard Irrigation 10,000 00
0
10.000 00
70.7021
SURFACE DRAINAGE
Other
0
70-7024
PLANTING
20.000
Planting Lump Sum 20,000 00
0
20.000 00
70-7111
TRAP FENCING
2.500
Trap Fence 2.50000
0
2,500 00
70-1185
MODEL INTERIOR UPGRADES
10,000
Other 10.000.00
0
10.000 00
70-7)86
MODFL CHANGES
`fiscellaneous -
0
70-7187
MUSIC SYSTEM INSTALLATION (SALES OFFICE)
System -
0
-
70-7188
SECURITY SYSTEM INSTALLATION (SALES OFFICE:
6.000
Other 6,00000
0
6,00000
70-7290
OFFSITE CONVERSION
OCfstte conversion -
0
-
70-7291
MODEL LANDSCAPE CONVFRSION
Conversion
0
70-7292
MODEL rNTERIOR CONVERSION
Conversion
0
70-7293
SALES OFFICE CONVERSION
20.001)
Conversion 20.000.00
0
20.000 00
?3-7306
DECORATING
228.355
General - Model & Sales Office 189,750.00
0
189,750.00
General - Community Room 38.605.00
0
38.605 00
73.7311
PRE SALES OFFICE/ TRAILER
14.000
Office Set up 5.00000
0
5,000 OU
Rental 9,00000
0
90000
AFTORDABI E HOUSfNG REP: SFII & SENIOR APTS COSIBFNED
PAI.M DFSFRT, CA
MASTER BUDGET BREAKDOWN
SALES
COMPLI-X & COMMUNITY ROOM
June 30. 2005
BUDGET_ DETAIL
Original
BUDGET
CODE
DESCRIPTION
Budget Infrastruct.
Subtotal
TOTAL
Garage Con er.ion
0
Decorating
0
73-7320
DESIGN CENTER
0
General
-
0
'73.7340
PLANT INSTALLATION- INTERIOR
6,500
General - SFR
5,000.00
0
5.000.00
General - Community Room
1.50000
0
1.50000
73.7341
EXTERIOR POT INSTALLATION
General
-
0
-
73-7351
ONSITE SIGN INSTALLATION
General
0
-
73-7361
CONTINGENCY
9.521
General
9.520 65
9.520.65
TOTAL BUDGET
326.876
0
326,876
326.876
AFFORDABLE HOUSING RFP: SFH & SENIOR ARTS COMBINED
PALM DESERT, CA
MASTER BUDGET BREAKDOw'1
SALES AND MARKETING
June 30, 2005
BUDGET SUMMARY
Original
CODE
DESCRIPTION _at<wK
Budget
80-9105
SIGNS SIAINTEN-NNCE
0
80-8115
MODEL FURNITURE RFNFAL
0
80-8I20
LANDSCAPE NIAINTEN.ANCF.
9.600
80.812(
S10DEL CLEANING
10.694
80-8122
MODEL REACCESSORIZING
600
80-8I23
INTERIOR Pt ANTS
3 600
80 8126
UTILITIES
18.000
80-8128
SECURI FY
1.800
80-8)29
COMPUTER SERVICES
1.800
80-8130
MUSIC
0
80-8)83
SALES OFFICE R MAINTENANCE SUPPLIES
9.000
85.8007
CONSULTANTS
5.000
85-8062
LFGAL - SALES DOC:S DRF.
R
85 9099
DRF. FIFES
7.500
85-8150
BROCHURES (include to ad agency fees)
0
85-9151
COL LAI ERAI. (included in ad agent} fees)
0
85-8181
SALE FORMS
0
85-8192
HOMEOWNERS MANUAL
0
85 8240
AD AGENCY FEES
65.000
8s-8241
PR AGENCY FEES
12.0W
85-8242
AD MEDIA
120.000
85 S260
SPECIAL FVENTS
5.000
85-8262
PHOTOGRAPHY
0
85.8280
1 FTiER PROGRAM
0
85.8283
MORTGAGF. FINANCING
0
85-8284
MOVE IN GIFTS
0
85-8173
SALES TRAINING
0
85-8385
CLOSING COSTS
0
85-Q400
SALESSTAFF
254612
95-8410
SALES AGENT
0
85-8440
CON'IrNGENCY
7.864
TOTAL
532,130
AFFORDABLE HOUSING RFP SFH & SENIOR APTS COMBINED
PALM DESERT. CA
h1.ASTE•R BUDGL"I' BREAKDOWN
SALES AND MARKETING
June 30. 2005
BUDGET DETA 1.
Original
CODE
DESCRIPTION
Budget Infrastruct.
90-8105
SIGNS MAINTENANCE
General
000
80-81 I5
MODEL FURNITURE RENTAL
General
000
80 9120
LANDSCAPE MAINTENANCE
Monthly
7.20000
000
Plant Rotation
2.40000
000
Potted Plant Maintenance
000
Pest Control
0.00
80 8121
MODEL CLEANING
Grand Opening Cleaning
50000
000
Carpet Cleaning
2.40000
000
'Xfonthly
7.79400
0.00
80-8122
MODEL REACCESSOR(ZfNG
Monthl,
60000
000
80-8121
fNTERIOR PLANTS
Monthly
3.60000
000
80-9126
UTILFFIES
Electrical Gan Water Phone (comet outreach)
2.40000
0 00
Electrical Gas Water'Phone (sales)
15 600 00
000
80-9128
SECURITY
Monitonng Fee
1.20000
000
false Alarm Fee
60000
000
80-8129
COMPUTER SERVICES
Monthly
1.800 00
000
MLS Fees
000
80-8130
MUSIC'
Mls<: M1IamCD's
000
UNITS
ACRES
CONTINGENCY
Infrastruct.
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
u
0
0
0
0
0
0
BUDGET
Subtotal
TOTAL.
0 00
000
9.600
7.200 00
2.40000
000
000
10.694
50000
2.40000
7.79400
600
60000
3.600
3.60000
18.000
2.40000
15.600.00
1.800
1.2t10 00
600.00
1.800
1.80000
000
000
TOTAL
BUDGET
0
0
9.600
10.694
600
1 600
18.000
1.800
1.800
0
9.000
5.000
n
7.1;00
0
0
0
0
65.000
12.000
120.000
5.(>QO
0
0
0
0
0
0
254.6'r2
'.864
532,130
AFFORD.ABIT HOUSING RFP SFH & SFN(OR APTS COMBINED
PALM DESERT. CA
MASTER BUDGET BREAKDOWN
SALES
AND MARKETENG
June 30. 2005
BUDGET DETA L
Original
BUDGET
CODE
.DESCRIPTION
Budget Infrastruct.
Subtotal
TOTAL.
80-8f83
SALES OFFICE & MAWTENAW E SUPPLIES
9.000
Set up purchased equipment (see 731 1)
-
000
000
Monthly L.cases
4.500.00
0 00
4.500.00
Monthly Supplies
4.50000
000
4 50000
85-8007
CONSULTANTS
5.000
DRE Budget
2.500 W
0 00
2.500.00
Translation
2.50000
000
2.50000
85 8062
LEGAL - SALES ROCS DRE
General (See 5909)
0 00
000
85-8089
DRF FEES
7.5011
General
T500 00
000
7.500.00
85-8150
BROCHURES (include in ad agency fees)
General
Print 4 3r 150 $1 40
85-8151
COLLArER.\l. (included in ad agency fees)
General
Rcpnnis Handouts
85-8181
SALE FOR`IS
Per Unit - 1 5 per
85-8182
HOMEOWNERS MANUAL
General
Per Unit
85.8240
AD AGENCY FEL•S
65.000
General
65.000 00
000
65.000 00
95-8241
PR AGENCY FEES
12.000
Monthly
12.000 00
000
12.000 00
85-8242
AD MEDIA
120.000
Monthly
120 000 00
000
120.000 00
Magazines Gatefold
-
85-8260
SPECIAL EVENTS
5.000
Grand Opening Event
5.00000
0 W
5.00000
Special Events Seminars
85-8262
PHOTOGRAPHY
General
85-8280
LEITER PROGRAM
Per Month
85-8283
MORTGAGE FINANCING
Forward Committment & Inspection Fees
VA FHA Processing
Buy down
85.8284
MOVE-iN GIFTS
Per Unit
85-9373
SALES TRAfNING
Seminars
85-8385
CLOSING COSTS
Closmc Costs- Sellers
Closing Costs- Buyer
85-8400
SALES STAFF
254.672
Sales Manager (included in
151.80o 00
000
)51.80000
Sales Assistant Hostess
8T692.00
000
87.692 00
Bonus
15.180 00
000
15.180 00
85-8410
SALES AGENT
General
85.8440
CONTINGENCY
7.864
General
7.96399
7.863 99
TOTAL. BUDGET
532.130
0
532.130
532.130
IIlly,
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Exhibit B.3
Development & Construction Plan
A. Owner's Role
Owner previously (i) processed and obtained Tentative Map approval for the Project, (ii)
procured and processed permit ready engineered drawings for rough grading and
improvements in the public right of way, permit ready architectural documents for the
senior apartments, and schematic drawings for the single family homes. Owner, as
Owner of the Property, is contracting with the Developer for fee based development and
construction services as defined below, and retains the right and responsibility to review
and approve all major decisions affecting the Project.
B. Developer's Role
The Developer will, on Owner's behalf, (i) contract for and oversee portions of the design,
engineering and construction documentation for the Project, (ii) process plan check, and pay
fees and permits, and (iii) contract for and oversee construction, all as more specifically set
forth below.
C. DesiQn, Ent-ineerinp- and Construction Documentation
Owner has delivered or will deliver to the Developer permit ready construction documents
prepared by MSA Consulting, Inc. for all rough grading and improvements in the public right
of way, the PM-10 plan, the Project SWPP and any other documents required by the NPDES
permit program.
Owner has delivered or will deliver to the Developer permit ready construction documents
prepared by Kristi Hanson Architects for the senior apartments.
Owner has delivered or will deliver schematic design drawings for the single family homes
prepared by Kristi Hanson Architects, along with evidence of that firm's assignment of the
schematic design drawings to Owner for construction documentation by others.
The Developer will retain KTGY Group, Inc. as Architect of Record, along with a consulting
structural engineer and mechanical design consultants to create permit ready construction
documents from the above referenced schematics for the single family homes.
The Developer will retain an architect and structural/civil engineer to create permit ready
construction documents for the carports serving the senior rental units and for block walls.
The Developer will retain RGA Landscape Architects to deliver conceptual and permit ready
construction documents for all landscape, irrigation and hardscape in accordance with the
design review requirements of the City of Palm Desert.
All consultants will indemnify both Owner and Developer against any claims for errors,
omissions and/or defects in their work. Owner shall indemnify the Developer against any
claims for errors, omissions and/or defects in the work of MSA Consulting, Inc., Kristi
Hanson Architects, and all other consultants involved in the preparation of construction
documents for the senior apartments. The Developer will indemnify Owner against any
claims for errors, omissions and/or defects in the work of KTGY Group, Inc. and all other
consultants involved in the preparation of construction documents for the single family
homes.
D. Desi2n Review and Plan Check Processine
The Developer will pay for, submit and oversee the processing of all design review and plan
check applications and such approvals as are necessary for the construction, completion, use
and occupancy for the single family homes, the block walls, common areas, senior rental unit
carports and the landscape architectural plans in accordance with the requirements of the City
of Palm Desert and other agencies having jurisdiction, collectively "Remaining Approvals".
E. Permits, Fees and Bonds
The Developer and/or Community Dynamics, Inc. as its general contractor ("General
Contractor"), will pay for and obtain/submit all permits, fees and subdivision
improvement bonds, and file the approved Final Map for recordation, as required by the
City of Palm Desert's Public Works Department prior to commencing rough grading and
improvements in the public right of way.
Provided that the General Contractor proceeds with vertical construction and common
area and lot improvements, the Developer and/or its General Contractor, will pay for and
obtain/submit all permits, fees and performance and payment bonds for 100% of the costs
of such construction as required by the City of Palm Desert's Public Works and Building
Departments and this Agreement prior to commencing such work. Owner and the City of
Palm Desert recognize that time is of the essence and shall endeavor to prioritize and
expedite the processing of all Project plans and permits.
F. General Contracts
Developer will divide all construction related costs into two separate categories, (i) those
associated with rough grading and improvements in the public right of way ("First Stage
Improvements"), and (ii) those associated with vertical construction and lot and common
area improvements ("Second Stage Improvements").
General contract for First Stage Improvements: The Developer will enter into a contract
with the General Contractor for the First Stage Improvements within 60 days of the date
of this Agreement for an amount not to exceed total costs for this category of
construction as shown in the Budget. Cost increases due to Owner Caused Delays, as
well as delays resulting from Force Majeure, as defined in Section 8.11 of this
Agreement, shall not be included in the Contract Sum.
General contract for Second Stage Improvements: During the construction of the First
Stage Improvements, the Developer will oversee the delivery of permit ready
construction documents for the single family homes and the landscape, hardscape and
irrigation of the Project. Within 60 days of the date Developer submits those documents
into plan check with the City of Palm Desert, the General Contractor will submit a bid to
the Developer for its consideration. If the total of the General Contractor's line items for
vertical, common area and lot improvement construction exceeds the Developer's
budgeted total of $13,164,768 for the Second Stage 2300, 3000 and 3900 categories by
not more than 10%, excluding the cost of any owner approved changes to the scope of the
original agreement, then the Developer shall enter into a contract with the General
Contractor for the Second Stage Improvements, and the Stipulated Sum as defined in
Section 4 of the Agreement shall be adjusted to include the above referenced excess
amount. The General Contractor shall indemnify the Developer and Owner against any
claims for construction defects in its work on the Project.
If the total of the General Contractor's line items for vertical, common area and lot
improvement construction exceeds the Developer's budgeted total budgeted total of
S 13,164,768 for the Second Stage 2300, 3000 and 3900 categories by more than 10%,
excluding the cost of any owner approved changes to the scope of the original agreement,
then the Developer shall have not less than 10 days to present to, and document its
General Contractor's costs for, Owner. If Owner approves the costs, then the Developer
shall enter into a contract with the General Contractor for the Second Stage
Improvements, and the Stipulated Sum as defined in Section 4 of the Agreement shall be
adjusted to include the above referenced excess amount. The General Contractor shall
indemnify the Developer and Owner against any claims for construction defects in its
work on the Project.
If, following its review, Owner so chooses, it shall notify the Developer of its decision
not to approve the Developer's proposed contract with the General Contractor for the
Second Stage Improvements.
In the event Owner notifies the Developer of its decision not to approve the Developer's
proposed contract with the General Contractor for the Second Stage Improvements, then
Owner shall have the right to either (1) suspend / terminate the Project, or (ii) solicit bids
from third party general contractors. If Owner elects to solicit bids, then the Developer
shall (i) in the course of a 30 day pre -bid period, prepare bid specifications for a
guaranteed maximum contract on Owner's behalf, and (ii) in the course of a 30 day bid
period, obtain proposals from not less than three general contractors subject to Owner's
prior review and approval of the proposed bidding contractors and specifications. At no
time prior to or during the 30 day bid period will the Developer, Owner or their
employees or agents disclose to any third party the amount of the General Contractor's
prior bid. Owner will reimburse the Developer for all additional costs associated with
soliciting bids from and negotiating with third party contractors subject to the
Developer's submittal of documentation for reimbursement verification.
If the Developer is able to solicit a bid for the construction of the Second Stage
Improvements for a contract sum which is less than that which the General Contractor
first proposed, and provided said sum reflects a scope of work and specifications which
are equal to or better than those of the General Contractor, then Owner shall have the
right to select the low bidder as the new general contractor for the Second Stage
Improvements ("New General Contractor"). If Owner selects a New General Contractor
for the Second Stage Improvements, then the Developer shall continue to serve as the
Project's Developer and receive its full Developer Fee. The Developer shall enter into a
guaranteed maximum contract with the New General Contractor for the Second Stage
Improvements, and the Stipulated Sum as defined in Section 4 of the Agreement shall be
adjusted to include the above referenced amount. The New General Contractor shall
indemnify the Developer and Owner against any claims for defects in its work on the
Project.
Documented material cost increases for three material groups (lumber & plywood,
concrete, and copper) for all phased construction of the single family homes following
construction of the models and phase 1 will be excluded from the contract sum for the
guaranteed maximum contract for Stage Two Improvements if said increases exceed 5%
of the phase 1 material unit costs. Said increases must be documented as follows. First,
the affected subcontractor must provide a certified quote from its phase 1 supplier re:
anticipated material costs by phase for all phases of single family construction prior to the
time the contract for the Stage 2 Improvements is awarded. Second, if the material costs
increase in phases subsequent to phase 1 by more than 5%, then the subcontractor
claiming such an increase must present the revised quote from its supplier documenting
the increase for the subsequent phases. Additionally, the subcontractor must solicit and
submit at least two additional independent quotes from other suppliers at prices equal to
or higher than the revised quote from its original supplier.
G. Development and Construction StrateQv
Developer will, to the best of its ability and to the extent such matters are within its
control, manage the development and processing of all construction documentation, and
the prosecution all construction in accordance with the Project Schedule (See Exhibit
B.5). Developer shall submit an updated Project Schedule to Owner with each of its
monthly reports as required under this Agreement.
Efficient execution of this Development and Construction Plan is predicated on (i)
Owner's timely delivery to the Developer of permit ready construction documents for
rough grading, and all construction in the proposed public right of way and public utility
easements, as well as the senior rental community, (ii) Developer's timely development
of plan check ready construction documents for the single family homes and all
landscape, hardscape and irrigation for the Project, (iii) Developer's timely processing of
said plans through plan check, and (iv) Owner's assistance in obtaining the City of Palm
Desert's cooperation in expediting the processing of said documents.
Developer will commence construction of First Stage Improvements upon the later of (i)
60 days following execution of this Agreement or (ii) 10 working days following the
City's issuance of a rough grading permit.
Based on current assumptions that Owner will make (i) 50% of the single family homes
affordable to lower income households, and (ii) the balance of the single family homes
affordable to moderate income households in accordance with requirements of the
California Health and Safety Code, and further assuming sales absorption of 15 units per
month for the low income and 5 units per month for the moderate income units, the
Developer intends to (i) commence construction of the single family model complex and
the senior apartments simultaneously, (ii) divide construction of the single family homes
into three phases as shown in the Project Schedule and, (iii) construct 30 single family
residences in each phase with the first phase in the NW corner of the Site, the second
phase in the central portion of the Site, and the third phase in the SE corner of the Site.
The construction phasing proposed in this plan is subject to change until Owner and
Developer approve a final phasing program.
Following the completion of construction, the Developer will (i) proactively monitor
homebuyer performance for a period of 3 months, and (ii) maintain, with the cooperation
of the general contractor, a construction warranty service program for a period of not less
than one year.
The Developer will ensure that the general contractor adequately staffs the project.
H. Costs of Develonment
Costs of development include Budget categories 2500, 5000 and 5900 (less Contractor's
Overhead and Profit).
I. Costs of Construction
Costs of construction include Budget categories 1500, 2000, 2300, 3000, 3900, 4000 and
the Contractor's Overhead and Profit in line item 5901.
Exhibit B.4
Sales & Marketing Plan
A. Owner's Role
Owner, as Owner of the Property, is contracting with the Developer for fee based sales
and marketing services as defined below, and retains the right and responsibility to
review and approve all major decisions affecting the Project. Owner will assume sole
responsibility for the leasing, operation and management of the senior apartments upon
the issuance of a Certificate of Occupancy for the buildings.
B. Developer's Role
The Developer, on Owner's behalf, will develop and implement financing, marketing /
community outreach and programming for sales, all as more specifically set forth below.
C. Defining the challenge — analvzing market trends
Current home pricing in Palm Desert and surrounding communities in the Coachella
Valley, even at the low interest rates presently available to the consumer, exceeds an
affordable housing cost for low and moderate income households in Riverside County.
At today's conventional interest rates, in order to comport with the requirements of the
State of California for affordable housing, a three bedroom home would generally have to
sell for an effective cost of less than $125,000 to a low income family, and less than
$200,000 to a moderate income family. Yet in April 2005 the median resale price of a
home in Palm Desert exceeded $482,000. 1
D. Meetin_e the challenge — proposed sales pricing and marketing policies
In order to meet the above challenge, Owner will endeavor to (i) make available 94 single
family homes at an affordable housing cost to low and moderate income households, (ii)
raise community awareness regarding the availability of said homes and qualifying
requirements, (iii) arrange for a delivery system which is fair and equitable, (iv) provide
more extensive homebuyer education to those who qualify and purchase, and (v) offer
post purchase support to individual homeowners and the HOA in the early stages of the
new community's establishment as is required by this Agreement and by applicable law.
E. Implementation — proposed sales programming / strategv
In order to assist Owner in meeting its goals, the Developer will develop sales
programming in three distinct areas:
1. Financing: The Developer will (i) consult with Owner personnel as they endeavor
to set sales pricing, define the desired mix of low and moderate income housing,
and identify that portion of Owner's investment in the Project which must take the
1 Source: Data Quick hews, L.A. Times Sunday Edition Charts
form of subordinated / deferred financing to the target buyers in order to make the
homes affordable to the targeted homebuyer population, (ii) prepare on Owner's
behalf and subject to Owner's review and approval resale restriction and
subordinated loan documents which serve to secure Owner's ability to enforce
resale restrictions and at the same time comply with the sometimes competing
requirements of various participating and/or regulatory agencies, (iii) identify
third party sources of subsidized financing and/or grants that would serve to
further leverage Owner's investment and/or deepen affordability to the targeted
population, (iv) select and coordinate the efforts of first trust deed community
lending partners familiar with affordable housing finance programs as they assist
in prequalifying low income buyers, and (v) obtain approvals from the secondary
lending market (eg., Fannie Mae, FHA) that may be necessary for original or
subsequent sales.
2. Marketing/Community Outreach: The Developer will employ or contract with a
Sales Manager to assist with sales and marketing of the Project. The Developer
and/or its agents will, subject to Owner review and approval and on Owner's
behalf, (i) prepare collateral material, (ii) coordinate with community based
organizations and Owner to reach the targeted population with news regarding
the availability of the housing and informational assemblies, (iii) develop and
conduct assemblies at which the Project and qualifying guidelines are explained,
and (iv) develop and implement a delivery system which ensures that the
opportunity to prequalify and purchase homes will be awarded in a fair and
equitable manner to the targeted population.
Sales: The Developer and/or its agents will, subject to Owner review and
approvals and on Owner's behalf, (i) prepare all sales related documents including
purchase contracts, seller disclosures, and organizational documents for the HOA,
(ii) manage DRE processing, (iii) coordinate the efforts of first trust deed lenders
(and subordinated lenders/grantors, if any) as they endeavor to prequalify
prospective buyers, (iv) arrange for and manage the sale of the homes, (v)
coordinate the efforts of escrow and title, (vi) provide for homebuyer /
homeownership classes for qualified buyers prior to the close of escrow, (vii)
monitor homebuyer performance and provide post purchase support for three
months following the last close of escrow of the project, and (viii) assist Owner in
selecting a community management service provider for the HOA and starting up
the HOA.
F. Absorption - proiected rates of sales
For purposes of sales and construction phasing and scheduling, the Developer estimates
absorption as follows: All low income units within a given phase will sell in the first
month that phase is offered. Moderate income units will sell at a rate of not less than five
homes per month. These projected rates of absorption are predicated on the assumption
that Owner will set pricing and terms such that the homes are available to the targeted
buyers in compliance with the requirements of governing sections of the California
Health and Safety Code regarding affordable housing.
Based on these projected rates of absorption, and assuming that half of the homes sell to
low income and half to moderate income families, the Developer has developed a
tentative construction and sales phasing schedule (See Exhibit B.5). The Developer
recognizes Owner's right to modify the mix of low and moderate income buyers, and
Owner recognizes that if it does so the Developer may recommend modified phasing to
protect against the risk of unsold inventory. Changes to pricing and phasing may alter the
Developer's performance schedule in construction and sales, as well as the costs of the
Project. If Owner changes phasing and said changes lead to increased costs or project
delays, these impacts shall be considered owner caused delays.
G. Costs of Sales & Marketina
Estimated costs associated with sales and marketing are covered in the 7000 and 8000
categories of Development, Construction and Sales Budget.
The costs of sales will be paid as is customary in Riverside County and certain costs that
are the seller's responsibility, such as loan and closing costs, will be paid for or provided
by Owner through the escrow, and are not a part of this Agreement.
Exhibit B.5
Project Schedule
Project Schedule
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EXHIBIT C
Consultants and General Contractor
C-I
12281-00003-1477196 7
Exhibit C
Consultants & General Contractor
A. Civil Engineering:
MSA Consulting, Inc.
34200 Bob Hope Drive
Rancho Mirage, CA 92270
(760) 320-9811 phone
(760) 323-7893 fax
Paul Sepulveda, Senior Project Manager
B. Architecture, Building, For -Sale Housing:
KTGY Group, Inc.
17992 Mitchell South
Irvine, CA 92614
(949) 851-2133 phone
(949) 851-5 l 56 fax
Manuel Gonzalez, Principal
C. Architecture, Building, Rental Housing_ :
Kristi Hanson, Inc.
72-185 Painters Path, Suite A
Palm Desert, CA 92260
(760) 776-4068 phone
(760) 776-4098 fax
D. Structural Engineer:
TBD
E. Title 24:
Haynal & Company
508 W. Mission Ave., Suite 201
Escondido, CA 92025
(760) 743-5408 phone
(760) 480-6246 fax
Mark Gallant, CEPS/CEA, HERS Rater
F. Architecture, Landscape:
RGA Landscape Architects, Inc.
74020 Alessandro, Suite E
Palm Desert, CA 92260
(760) 568-3624 phone
(760) 773-5615 fax
Ronald Gregory, President
G. General Contractor:
Community Dynamics, Inc.
2800 28`h Street, Suite 206
Santa Monica, CA 90405
(310)399-9555 phone
(310) 399-9777 fax
Loren Bloch, President
EXHIBIT D
Payment Procedures
D-1
12281-00003-1477196 7
Exhibit D
Payment Procedures
Developer shall submit Applications For Payment of all Project Costs (including, without
limitation, applications submitted by the General Contractor, Architect, Consultants and
for all other Project fees and costs) on the 10'h and 25`h of each month.
Each Application For Payment shall include a Cover Letter For Application For Payment,
Application For Payment, and a Conditional Release Upon Progress / Final Payment
conforming to the form documents attached hereto. Developer shall append itemized
statements for each cost category, and supporting invoices documenting all amounts
shown in the Application For Payment.
The Developer shall (1) require Conditional Releases Upon Progress / Final Payment, or
Stop Notice Releases, from all contractors, subcontractors / vendors who have filed a 20
Day Preliminary Notice with either Owner, Developer, and / or the General Contractor,
(ii) append any such releases to the supporting invoices referenced above, and (iii) issue
joint checks to any billing parties and those vendors which provided them with either
labor and / or material lien releases at the time of payment.
Owner shall review each Application For Payment and, provided that (i) the amounts
requested conform with the provisions for payment in Section 4 of this Agreement, (ii)
Developer has presented all supporting documentation as required by this paragraph, and
(iii) the amounts being requested for construction reflect the actual percentage of progress
on the job less any provisions for retention as indicated in Developer's agreement with
the General Contractor, then Owner shall, subject to its review and approval which shall
not be unreasonably withheld, make payment to Developer in the amount set forth in the
Application on or before the thirtieth (301h) calendar day following Owner's receipt of
Developer's Application For Payment.
Exhibit DA
Cover Letter for Application for Payment
Date:
Palm Desert Redevelopment Agency
73510 Fred Waring Drive
Palm Desert, CA 92260
RE: Tract #30795, City of Palm Desert, County of Riverside
Enclosed is a copy of our Application For Payment dated , in the amount of
$ , including backup documents for the Project for your
review and funding.
There are no known unbonded mechanic's or material men's liens or stop notices relating
to our work and affecting this Project as of the date of this Application For Payment. All
due and payable bills with respect to our work have been paid or are included in the
amount requested in the current application, and except for such bills not paid by
Contractor but included in this Application For Payment, there is no known basis for the
filing of any mechanic's or material men's liens on, or stop notices in connection with the
work.
If you have any questions regarding this request for payment, please feel free to call.
Sincerely,
Its: